Article by Thomas B. Leary
When Bert Foer and I discussed this event a few months ago, he said I would be the first Republican that the American Antitrust Institute (AAI) has chosen to recognize in this way. Some ardent Democratic supporters of AAI, and some ardent Republican critics, may think this whole affair is a terrible mistake. With respect, I think they are living in a time warp. There really is no such thing as a “Republican” or a “Democratic” antitrust agenda today. People may have different views on the facts of individual cases for a variety of reasons, but there is a broad mainstream consensus on the basic approach to antitrust issues.
This was not always true. When the so-called “new learning” first emerged from the academic world to become part of the broad policy debate roughly thirty years ago, there was a sharp ideological divide. There were widely divergent opinions on economic issues like the consequences of industrial concentration, the role of efficiencies, and the justifications for vertical restraints. There was a basic disagreement on whether it was appropriate to focus on economics in the first place, to the exclusion of social and political factors. There undoubtedly was some correlation between party affiliations and policy positions on these issues. It is not necessary to rehash that great debate here, other than to observe, first, that actual antitrust enforcement practice was never as polarized by party as popular rhetoric suggested and, second, that in recent years even the rhetoric has cooled down as the areas of difference have narrowed dramatically.
We play the antitrust game between the forty-yard lines today. The AAI still has an unabashedly pro-enforcement agenda, but the AAI does not emphasize the political and social content of antitrust. It does not argue that efficiency is bad. In fact, my experience in a bipartisan agency like the Federal Trade Commission (FTC)—as both a minority and a majority member—is that no one, inside or outside, makes those old arguments anymore. The FTC's differences with AAI, when we do differ, are not the stuff that lights political fires.
The present civil level of discourse is, however, not the only reason that I am pleased and honored by this event. There is a bond that runs deeper. The AAI, like the FTC, has in recent years sponsored a number of open forums to present varied viewpoints on controversial antitrust issues. Both organizations support the virtues of research and discussion by people with different points of view. I once heard a talk to a business audience by Seymour Lipset, the political scientist. He stressed that even the most ardent partisans should support independent research and discussion in a neutral forum, in words I have never forgotten: “If your side's arguments stand up well in that setting, they will have much greater credibility; if they do not, you want to be the first to know.” Implicit in his comment is acknowledgment of human fallibility. Today, the FTC's and the AAI's mutual support for research and discussion reflects a common recognition that microeconomics is a still-evolving discipline and that it is possible that some of our current principles and methods “may be mistaken.”
When I reflect today about the differences between the experiences in my current job and my previous experiences as an antitrust lawyer in the private sector, the first thing that comes to mind is that a lot of cases now seem much more difficult. The reason is that I had clients in the private sector, and my job was to employ precedent and arguments, as best I could, to advance a client's objectives. There may have been close judgments about strategy and tactics, but I knew which side I was on. Today, I have to vote on whether to support a complaint (or, less frequently, to vote on whether a complaint was proved) and, going in, I don't know which side is right. There are likely to be eloquent counsel, economists, and business people advocating different conclusions, based on a common analytical framework that I respect. Along with my colleagues, I ultimately have to come down on one side or another, but I am always conscious that I may be mistaken.
In this Article, I address some of the most difficult issues that we face and suggest that the policy implications of these uncertainties can sometimes be argued both ways, to support either a more or a less aggressive antitrust agenda. I will then describe how I attempt to cope with those uncertainties in my present job.
About the Author
Thomas B. Leary. Commissioner, Federal Trade Commission.
Citation
80 Tul. L. Rev. 605 (2005)