Kent Bernard, Dec 16, 2010
There is a tendency, especially among those of us who count ourselves as antitrust lawyers or economists, to think that the antitrust laws were handed down by the benevolent gods on Mount Olympus, and that they are the only guidance that we need in the areas in which they apply. Certainly, there may be robust debate around the edges, and the economists will litter the field with their formulae, but at the core there is almost no argument-horizontal cartels are evil. And except for a few free market diehards, the consensus is that such evil should be eradicated by the law.
The problem arises when factors other than competition demand their day in the sun. When a crisis erupts, and the government elects to intervene forcefully in the economy, we are reminded that the antitrust laws were a political response to a set of conditions in the late 1800s and early 1900s. That they have retained vitality and effectiveness for over 100 years is a testimony to their wisdom, but that doesn’t mean that other factors aren’t important.
The responses to the economic meltdown of 2008-2009, and the Health Care reform law passed in 2010, have created a new set of imperatives that need to be balanced against traditional antitrust doctrine. In finance, accounting, and now health care, we are seeing the rise of a small number of powerful, government-protected, enterprises. If these groups share information, even talk about prices, are they doing something illegal (as antitrust would say) or simply what they were created to do (see the discussion of Accountable Care Organizations (“ACOs”) below)?
If the government wants them to coordinate their activities for policy reasons, is there still a role for antitrust? Or have we created what are, in effect, government-sanctioned, bulletproof, cartels? And what, if anything, should we do about that, so that when we look back from 2025 we can smile rather than cringe?
