Bespoke Antitrust

Bespoke Antitrust

 

 

Harry First

New York University School of Law

Spencer Weber Waller

Loyola University Chicago School of Law

 

Abstract

Antitrust laws in the United States, and competition rules in Europe, are usually set out in statutes of general applicability, written in broad, almost constitutional form. This is a “one size fits all” statutory style. There is another possible style of antitrust, which we call “bespoke antitrust.” It consists of specialized rules customized for the industry, for a particular plaintiff or defendant, or for the practice in question.

In this article we describe the under-appreciated trend toward bespoke antitrust law. We think that this trend shows up in case law, enforcement agency practice, and regulatory alternatives. We also look at existing and new proposals to create more bespoke antitrust rules and institutions to deal with the challenges of digital platforms and other dominant firm in the tech space. This, we believe, is a particularly important example of the trend toward more bespoke rules for competition law.

We conclude with a cautious endorsement and a caveat. Bespoke antitrust is expensive in many ways and can threaten the rule of law by carving out exemptions if society (or the beneficiaries) are willing to pay the price. Nevertheless, there are important areas where targeted efforts are worth the price. Custom-tailoring has its rewards.