The Decline, Fall, and Renewal of U.S. Leadership in Antitrust Law and Policy

The United States has lost its world leadership in antitrust, evidenced by its narrow conception of market power and its abuse.  This essay pinpoints exactly where the U.S. has fallen behind and suggests how it can regain footing, this time not as hegemon but sharing the reins with sister jurisdictions.

By Eleanor M. Fox^[1]

I. Introduction

The United States was the pioneer in antitrust law. By and through the 1960s and most of the 1970s, it developed a law that was harsh on price-fixing, harsh on powerful firms’ exclusionary practices, and harsh on mergers that consolidated power. It was admired world over as the leader in competition law and policy.

Post-World War II, U.S. antitrust was exported to Germany and Japan as the economic law of democracy. In the late 1950s, to anchor peace in Europe, six European nations formed the European Economic Community (later to grow to 28 nations and then to contract to 27), drawing from the U.S. Sherman Act as well as from the German law against restraints.

Over the next many years, scores of nations adopted competition law, taking lessons from both the U.S. and the EU. But by early in the new millennium, the bloom was off the U.S. anti-monopoly rose.

U.S. monopoly law shrank in its reach while public concerns about monopolies grew. People came to fear that very big business – epitomized by Big Tech – was taking control of their lives; that the market system works for the elites, not for “the people”; that the