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The debate over the proper role of technocratic experts in a modern democracy has taken on urgent, society-wide proportions. Many Americans have lost trust in institutions, believing that experts with specialized knowledge have smuggled political biases into policymaking under the guise of scientific neutrality. At the same time, many also recognize that jettisoning technical expertise from policymaking risks replacing an ethic of neutrality with rampant politicization. In antitrust as elsewhere, extreme views threaten the stability of democratic institutions.
A consensus once held that antitrust had long ago evolved into a mature technocracy and left behind its democratic origins as a “movement.”[1] Today, that consensus has largely evaporated. Bipartisan, populist antipathy toward powerful corporations has reignited the public’s once “faded passion”[2] for antitrust law and competition policy. Industrial organization experts and economically sophisticated lawyers continue to shape law and policy, but their work is now heavily scrutinized and increasingly politicized. If antitrust is to “yield the best allocation of our economic resources … while at the same time providing an environment conductive to the preservation of our democratic political and social institutions,”[3] then the country will have to reconcile its technocratic and populist impulses.
AAI’s 26th Annual Policy Conference will seek to advance this goal. Three panels of speakers will offer insights, analysis, and recommendations for applying the antitrust laws in a climate of political upheaval and skepticism of experts. Panelists will grapple with the risks and opportunities presented by recent efforts to (1) reduce or eliminate economic complexity from Sherman Act enforcement, (2) rethink or reinvent merger policy, and (3) apply political pressure to agency enforcement agendas.
The conference will include a gala luncheon featuring the presentation of the 2025 AAI Antitrust Achievement Award and the presentation of the Jerry S. Cohen Award for Antitrust Scholarship.
[1] See, e.g., Richard Hofstadter, What Happened to the Antitrust Movement?, in The Paranoid Style in American Politics and Other Essays 189 (1st ed. 1965) (observing that antitrust “now runs its quiet course without much public attention”); Daniel A. Crane, Technocracy and Antitrust, 86 Tex. L. Rev. 1159, 1160 (2008) (observing that antitrust “has become increasingly separated from popular politics, insulated from direct democratic pressures, delegated to industrial policy specialists, and compartmentalized as a regulatory discipline.”).
[2] Hofstadter, supra n.1 at 190.
[3] Northern Pacific R. Co. v. United States, 356 U.S. 1, 4 (1958).
CONFERENCE LOCATION:
National Press Club Holeman Lounge
529 14th Street NW, 13th Floor
Washington, DC 20045
CLE CREDITS:
This conference was approved by the Pennsylvania Continuing Legal Education Board for 4.5 CLE credit hours. Attendees will be emailed CLE certificate of attendance after the conference.
REGISTRATION PRICING:
$225 | Conference Registration
$100 | Government/Academic/Nonprofit
$0 | Media
$0 | Advisory Board/Sponsor/Invited Guest
Panel 1: Can We (Ever) Escape the Complexity of Antitrust?
The prevalence of economic analysis in antitrust law has given rise to enormous complexities, particularly in rule of reason cases. Enforcers and courts are sometimes pressed to weigh incommensurable values, to trade off long-term and short-term effects, and to apply unique liability standards to different categories of restraints. Some have proposed rules, presumptions, and other shortcuts designed to reduce complexity, but the solutions often beget exceptions or qualifications that generate still more complexity. This panel will examine past and current efforts to simplify Sherman Act enforcement, drawing lessons from previous experience and making recommendations for the future. Topics will include the per se and “quick look” rules, the Trinko and Brooke Group tests, predatory product-redesign and reverse-payment tests, and other departures from the full-blown rule of reason.
Panel 2: Merger Experts and Merger Expertise: What Does the Future Hold?
The 2023 Merger Guidelines have been publicly endorsed by the antitrust leadership of both the Biden and Trump administrations. But several leading commentators have expressed concerns that, relative to previous iterations, the guidelines deemphasize the central role of economic analysis in merger control. Among other things, commentators argue that the guidelines give special prominence to market structure, deemphasize the hypothetical monopolist test, and downgrade the role of economic welfare and price effects in establishing harm to competition. This panel will explore the future of merger analysis as an expert-driven enterprise and consider how merger enforcement is likely to evolve under the new guidelines and the current political climate.
Panel 3: Agency Deference, Independence, and Political Pressure: Protecting the Integrity of Enforcement
Antitrust is invariably a political enterprise because it entails the discretionary exercise of enforcement authority that affects markets, wealth distribution, and economic equality. At the same time, intentionally wielding enforcement powers to achieve political ends can run the gamut from unethical to corrupt. There is widespread concern that recent Supreme Court and Executive Branch encroachments on agency independence threaten the integrity of antitrust enforcement. Panelists will discuss the implications of recent developments and how to chart a path forward. Topics will include changes in administrative law affecting independence and deference, past and present examples of political influence in the allocation of enforcement resources, and how external dynamics and outside political pressure affect agency performance.
