The courts are a barrier to making progress in fighting the new age of monopoly power
America has a concentration problem. Across the political spectrum – from progressives like Joe Stiglitz to centrists at Brookings and conservatives at Breitbart – experts and commentators agree that antitrust needs to be a priority. But there has been significant debate on what to do: do we need more enforcement or new laws? Is the problem technical or ideological? This year, one thing has become clear: the courts are a barrier to making progress in fighting the new age of monopoly power – and reform will have to involve taking antitrust away from the courts.
Some background will be helpful. Antitrust policymaking differs from virtually every other area of policymaking. In other areas of policymaking, Congress passes laws commanding government agencies to regulate different areas. The EPA regulates pollution in air and water. The National Highway Transportation Safety Administration ensures that cars and trucks are safe. The Consumer Products Safety Commission oversees children’s toys. Each agency is filled with experts in these fields, and they rely on this expertise in issuing regulations. They are also required to follow an extensive process to receive input from industry and from the general public. Courts do review regulations, but they grant significant deference to the agency’s expertise.
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