How Institutional Design Affects Statutory Implementation: Lessons from Competition Law

Posted by D. Daniel Sokol

William Kovacic (FTC) and David Hyman (University of Illinois Law) discuss How Institutional Design Affects Statutory Implementation: Lessons from Competition Law in their latest paper.

ABSTRACT: It is one thing to pass a law, and entirely another to come up with the necessary institutions to implement it. Yet, institutional design is the Rodney Dangerfield of legal scholarship; it gets no respect. We explore this issue by considering how institutional design has figured in the development and implementation of competition law.
 
Competition law incorporates both antitrust and consumer protection law. In the United States, competition law is enforced by a dual purpose agency enforcing both consumer protection and antitrust law (the Federal Trade Commission), a single-purpose agency enforcing consumer protection law (the Consumer Product Safety Commission), and single-purpose divisions within a multi-purpose agency enforcing antitrust law (the federal Department of Justice, and various state attorneys general) and consumer protection law (state attorneys general).
   
These disparate institutional forms provide a unique test bed with which to assess how institutional design affects statutory implementation, and assess the comparative costs and benefits of different designs. We focus in this article on the domestic experience with competition law.

Internationally, similar patterns of institutional design prevail, with various combinations of competition law enforced by various entities. We plan to address the international experience with competition law in a future article.