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Shelanski, Howard A. --- "Antitrust and Regulation" [2012] ELECD 225; in Elhauge, R. Einer (ed), "Research Handbook on the Economics of Antitrust Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of Antitrust Law

Editor(s): Elhauge, R. Einer

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440807

Section: Chapter 12

Section Title: Antitrust and Regulation

Author(s): Shelanski, Howard A.

Number of pages: 24

Extract:

12 Antitrust and regulation
Howard A. Shelanski*


INTRODUCTION

Antitrust enforcement has long helped to prevent anticompetitive conduct and protect
consumer welfare in regulated industries. The federal courts were long reluctant to
allow a firm's regulated status to immunize it from antitrust suits. Over the past decade,
however, the Supreme Court has signaled a weakening of that reluctance. Notably, the
Court's decisions in Credit Suisse v. Billing1 and Verizon v. Trinko2 have reduced the scope
of antitrust enforcement against regulated firms in important circumstances. This chapter
analyses the reasoning and potential consequences of the Court's recent decisions and
discusses some possible future directions for antitrust policy in regulated markets.
Section I of this chapter describes the relationship between antitrust and regulation
before 2004 and examines how the Supreme Court changed that relationship through
its decisions in Trinko and Credit Suisse. Section II then offers a critique of the Court's
rationale for limiting antitrust in regulated markets and discusses some important ques-
tions that the Court's decisions leave open. Section III discusses some suggestions for
change that could improve on the current state of the law while still addressing the con-
cerns that motivated the Supreme Court to adopt its restrictive stance toward antitrust
enforcement in regulated industries. Section IV concludes.


I DOCTRINAL EVOLUTION OF REGULATORY IMMUNITY
FROM ANTITRUST LAW

Before 2004, the federal courts did not view it as novel or surprising for antitrust agencies
or private parties to intervene against conduct subject to regulation. In ...