Perspectives on State and Federal Antitrust Enforcement

This Article reviews federal and (especially) state antitrust enforcement in light of the Microsoft proceeding. Criticism of state enforcement based on that case is misplaced. The Article identifies three consensus comparative advantages of state enforcers: familiarity with local and regional markets, closeness to state and local institutions, and ability and experience in compensating individuals. A review of state enforcement activities finds that the vast majority are consistent with one or more of these advantages.

The Article also identifies hallmarks of generally accepted federal civil non-merger enforcement: both antitrust agencies participate actively, using a variety of tools, while showing support for mainstream, economics-based antitrust and an interest in addressing important questions, litigating, and addressing legal issues arising in private as well as public cases. These factors are considered through review of the agencies' role in addressing the appropriate application of the per se rule, the rule of reason, and mid-level review. The Article ends with modest recommendations. Enforcers should continue to use their array of powers, they should address systemic issues in the antitrust system, and they should apologize less.

State enforcers, in particular, need to do a better job of helping observers understand what they actually do-which is something on which state enforcers are working, and something to which this Article may contribute.