The Relationship of Antitrust and Regulation in a Deregulatory Era
The Antitrust Bulletin
Philip J. Weiser, The Relationship of Antitrust and Regulation in a Deregulatory Era, 50 Antitrust Bull. 549 (2005), available at http://www.heinonline.org/HOL/Page?handle=hein.journals/antibull50&start_page=549&collection=journals&id=551.
In Verizon v. Trinko, the Supreme Court set forth a new stance toward antitrust oversight of regulated industries. As this Article discusses, the particulars of that stance remain open for debate and are likely to generate considerable disagreement. Notably, an ambitious reading of Trinko suggests that courts should avoid evaluating antitrust claims where a regulatory agency is empowered to oversee the conduct at issue. This Article, by contrast, calls for a less ambitious application of Trinko's rule of antitrust restraint. In particular, it explains that antitrust courts should make discretionary judgments about whether the effectiveness of regulation in a given set of circumstances renders antitrust oversight unnecessary. By so doing, antitrust courts would defer to regulatory agencies only where those agencies are reasonably capable of managing the competition policy matter at issue. If antitrust courts opt for a broader rule of restraint, such a stance would only fuel an unfortunate trend of devaluing the role of antitrust oversight and overly valuing the capabilities of alternative institutional actors. Rather than adopt that stance, antitrust courts should evaluate what revisions to legal doctrine and procedural practices can best evaluate claims that antitrust courts might otherwise seek to dismiss under Trinko.
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