A New Approach to Antitrust Law: Transparency

Antitrust enforcers in the post-Microsoft era, under both Republican and Democratic administrations, have been under more or less continuous criticism as insufficiently active. Proponents of this view have offered a number of routes to more vigorous and creative enforcement, ranging from re-writing the core statutes to address high tech industries and following the lead of the European Commission to adopting a “Brandeisian” approach, which focuses on a variety of concerns beyond consumer welfare, including employment, privacy, and environmental sustainability. As an alternative to these “tear it all down” approaches, could greater transparency be a more effective response? Concerns regarding the level and type of enforcement activity are arguably rooted in widespread misunderstanding of the process, particularly with respect to merger review. Has the time come to update the DOJ/FTC guidelines on horizontal mergers, the licensing of intellectual property, the operation of information exchanges, and other issues? Are agency processes and decisional factors sufficiently well understood? Has the Supreme Court’s antitrust docket hampered or improved transparency? Such questions are particularly timely in light of the FTC’s ongoing hearings on Competition and Consumer Protection in the 21st Century. Hon. Frank Easterbrook, United States Court of Appeals, Seventh Circuit Ms. Deb Garza, Partner, Covington & burling Mr. Eric Grannon, Partner, White & Case Prof. Douglas Melamed, Professor of Law, Stanford Law School Moderator: Hon. John B. Nalbandian, United States Court of Appeals, Sixth Circuit