Thursday, January 19, 2023

The Evolving Geography of American Antitrust Mind

The Evolving Geography of American Antitrust Mind



Sungjoon Cho

Chicago Kent College of Law


The American antitrust regime has long been accused of countenancing the unprecedented monopolization of high-tech industries, including Facebook, Amazon, Apple, Netflix and Google. Such regulatory omission was thrown into sharp relief against the original antitrust history in which industrial behemoths, such as Standard Oil, were broken up. Yet, with a series of federal recruits of neo-Brandeisians, the Biden administration attempted to revamp American antitrust regime. Why was American antitrust regime passionately pro-industry in past administrations, to the extent that the very rationale of antitrust was in doubt? Also, what caused the sudden paradigm shift in the new administration? In an effort to answer these vexed questions, this Article employs a new concept of “regulatory mind,” which can be broadly defined as a basic set of assumptions, beliefs, and values that constitute a particular regulatory ideology. This Article advances a dynamic investigation of American antitrust mind, which can elucidate the nature and identity of American antitrust regime. First, this Article maintains that Chicago School’s market fundamentalism heavily influenced American antitrust mind. Second, this Article seeks to corroborate such observation by tracing the dynamic shift of antitrust jurisprudence surrounding vertical price restraint (VPR). The main contribution of this Article is to reveal granular details that punctuate the analytical veil of clichéd images of American antitrust law and offer fresh insights informed by a sociological methodology of process tracing.

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