The book Reforming Antitrust by Alan J. Devlin, partner at Latham & Watkins LLP and adjunct professor at Georgetown University Law Center, carefully takes the readers through the debates on US competition policy in the past decades and offers a new perspective for today’s antitrust reform. Rather than grounded on the neo-Brandeisian or populist approach, Devlin champions the modern US antitrust free-market foundations, refutes the call to revive structuralism and argues for evidence-based refinement of antitrust.
This book is divided into three parts, along with an introduction and a conclusion. Each part is composed of three chapters. Part I “Antitrust Today” provides a thorough overview of the fundamental questions of today’s antitrust. Part II “The Case for Change” gives an in-depth and critical analysis of the neo-Brandeisian movement. On account of these discussions, Part III “Antitrust Reform” presents specific proposals for antitrust reform.
In Part I “Antitrust Today,” the first chapter explores the goals of competition law. After revealing its political dimension, Devlin illustrates two distinct interpretations of antitrust law: the neoclassical antitrust and the political antitrust. The former refers to the law and economics approach in which the price theory plays a central role, while the latter signifies the approach that accommodates nonefficiency factors. The following two chapters discuss the most essential questions on which the competition law is based. By investigating the examples especially from the digital sector, Devlin addresses the fundamental question of whether markets potently self-correct and explains antitrust role in facilitating competitive market cycling. Devlin also examines the presence of efficiencies in merger review and the question of merger synergies by going through the empirical literature since the 1980s. Last and foremost, Devlin deals with the relationship between concentration and market power. He states that the evidence is not on the side of the claim that an increase in concentration necessarily causes an increase in market power, and the agencies should depend upon “more reliable, direct evidence of competitive effects” if available. Furthermore, he points out that the causal relationship existing between concentration and price is “bidirectional.” Caution must be exercised when drawing inferences about potential price effects.
In Chapter 4 of Part II “The Case for Change,” Devlin demonstrates and explains the evidence of rising concentration in the US as well as the evidence of market power beyond concentration measures. Under this context, Devlin introduces to the readers in the next chapter the neo-Brandeisians, which are defined in his book as the “antitrust reformists who reject competitive-effects analysis in favor of a redistributive structuralism defined at the industry level.” In this respect, he gives a substantive exposition of the views of Tim Wu, Lina Khan, Chris Sagers and Rohit Chopra. On top of that, Devlin undertakes a theoretical exploration of neo-Brandeisian antitrust, then identifies the serious flaws associated with structural antitrust—namely, the abandonment of accuracy, the reliance on a faulty premise, the unwelcome consequences of relieving the agencies’ burden of proof and the risk of incoherence. The sixth chapter tests the neo-Brandeisian position from a critical perspective. Starting with the Utah Statement issued by the leading members of the neo-Brandeisian movement in October 2019, Devlin dedicatedly evaluates these proposals on a one-by-one basis.
Part III “Antitrust Reform” begins with a chapter dedicated to decision theory. Devlin focuses on the error-cost framework and envisages a recalibration between the incidence of type II errors—that is, false acquittals—and type I errors—that is, false convictions. He indicates that enforcers have overweighted type I errors in deciding whether to intervene, which led them to “marginalize antitrust exposure in a regrettable way.” He urges that enforcers should minimize the raw number of errors of all kinds. Chapter 8 delves into the question of consumer-welfare standard. Contrary to neo-Brandeisians’ views, Devlin does not consider that abandoning the consumer welfare standard will bring about a revolutionary change to antitrust law. However, there is a need to revisit “competition policy’s long-held banner.” The last chapter brings to a close Part III by proposing a flexible reimagination of doctrinal antitrust analysis. The market definition, among other things, most warrants revision. In addition, the Noerr–Pennington doctrine, which immunizes non-sham petitioning from antitrust liability, is also worthy of attention, in particular when it encounters intellectual property issues.
This book is very well written with rich content and profound thoughts. It is arguably best suited for legal professionals, policymakers, academics in the field of antitrust and anyone who is interested in antitrust reform.