Tuesday, August 3, 2010
Posted by D. Daniel Sokol
ABSTRACT: Antitrust enforcement has long helped to prevent anticompetitive conduct and protect consumer welfare in regulated industries. Despite that valuable role, the Supreme Court’s decisions in Credit Suisse v. Billing and Verizon v. Trinko have reduced the scope of antitrust enforcement against regulated firms. This article analyzes the reasoning and potential consequences of the Court’s recent decisions. It provides a critique of the reasoning behind the Supreme Court’s redrawing of the relationship between antitrust and regulation and explains how Credit Suisse and Trinko could saddle regulators with a choice between inefficiently strong and overly weak regulation as economic conditions change in regulated industries. The article then discusses possible remedies and concludes that consumers and industry would benefit from a rebalancing of antitrust and regulation.