The U.S. Antitrust Laws in a Global Context

Abstract

For more than a hundred and ten years, the U.S. antitrust laws have stood at the center of what loosely (and to some, heretically) could be called the industrial policy of the United States. Competition, undertaken by private economic actors and constrained only by rules designed to protect the integrity of the market itself, has been the force that has led to unparalleled economic success. There is much in these laws, however, that is rooted in the particular history and economic circumstances of the United States, starting with the name that they bear: antitrust. It is a quaint name, evocative of long-dead robber barons and swashbuckling Presidents. Other countries with more recently enacted laws give them the more straightforward label of “competition” laws–laws designed to protect competition and consumers. This Article will explore the extent to which the U.S. antitrust laws differ from the systems that have developed elsewhere, particularly in the European Union, a place whose competition regime is soon to be reflected in the national laws of more than twenty-five countries. Differences do exist, and it is worth identifying what those differences are, why they exist, and how they matter. We will see that those differences are important even now, not only to practitioners of the slightly esoteric field of “international antitrust,” but also to the rest of the antitrust bar. And the importance of understanding the way others view this field will only become greater over time; the ideas that our counterparts elsewhere have of competition law will inevitably affect the way that American firms do business, and possibly even the content of domestic U.S. antitrust law itself.