Wednesday, April 4, 2007
Crane on Antitrust Antifederalism
Posted by Mary L. Dudziak
Daniel A.Crane, Cardozo, has posted a new article, Antitrust Antifederalism, which is forthcoming in the California Law Review. While U.S. antitrust history is often traced to the late 19th century, Crane begins with the era of the nation's founding. Here's the abstract: U.S. antitrust law has been profoundly influenced by a historical aversion to direct federal superintendence of corporations. This ideological impulse began with Antifederalist opposition to Madison's proposal to grant Congress a general incorporation power and carried over to the Progressive Era where it defeated a proposed corporate regulatory model of antitrust. The antitrust antifederalist impulse thus enabled the rise of the competing crime-tort model, in which antitrust law creates a freestanding norm of industrial competition rather than a regulatory apparatus for policing the capital-concentrating effects of incorporation statutes. As it has interacted with the general features of the U.S. civil litigation apparatus, this crime-tort conceptualization has produced a variety of pathologies including an excessive focus on locating a “bad act” rather than specifying appropriate corporate structure; delegation of adjudicatory decision-making to generalist judges and juries rather than industrial policy specialists; the predominance of private enforcement over public enforcement; extension of antitrust law to non-corporate subjects, particularly the working class; and interference with federal competition policy by parochially interested state regulators. The one major exception to antitrust antifederalism's continuing dominance - the pre-merger notification system adopted in 1976 - reveals the advantages of the corporate regulatory model and suggests some steps that could be taken to rationalize the institutional structure of antitrust law.