Technocracy and Antitrust

In this Article, Professor Crane looks at the shift in U.S. antitrust enforcement from a democratic–populist undertaking to a technocratic endeavor relegated to specialists in the Justice Department and the Federal Trade Commission (FTC).  Professor Crane largely celebrates this shift and calls for more technocratic experimentation in antitrust.  Professor Crane documents the shift in antitrust law through the course of its history to show how the political salience of antitrust law has varied throughout its history.

The overall trend, however, is that antitrust law “has become increasingly separated from popular politics, insulated from direct democratic pressures, delegated to industrial-policy specialists, and compartmentalized as a regulatory discipline.”  While antitrust may no longer be “a magisterial pursuit” that “stir[s] the public imagination,” and while the political salience of antitrust has declined following the Chicago School revolution of the 1970s, actual antitrust regulation continues unabated.  Thus, the diminishing visibility of antitrust law does not signal its obsolescence, but rather its increased sophistication as a body of law and the increased sophistication of the institutions charged with administering such law.  In contrast to this overall trend towards technocratic methods, antitrust law still contains a few populist institutions.

Professor Crane advocates for antitrust law to get out from “under the shadow” of its remaining populist institutions.  The reforms he suggests—such as separating cartel enforcement from other antitrust enforcement and granting the FTC norm-creation powers—would not be radical and would simply further the technocratic drift of antitrust law.  Ideally, Professor Crane hopes that antitrust will become “an expertized, administrative enterprise focused on managing market structures and industrial practices as opposed to a populist, generalist-driven one focused on locating and punishing forbidden bad acts.”