Academic journal article The George Washington Journal of International Law and Economics

Antitrust and American Business Abroad

Academic journal article The George Washington Journal of International Law and Economics

Antitrust and American Business Abroad

Article excerpt

Antitrust and American Business Abroad by Spencer Weber Waller. Deerfield, Illinois. Clark, Boardman, Callaghan, 1997. Two volumes. $145 (hardcover, ring binder).

DOUGLAS E. ROSENTHAL*

Antitrust and American Business Abroad is a great book-the best I have reviewed in 28 years. It is a treatise of more than a thousand pages about U.S. antitrust law and its role in the foreign commerce of the United States. Other good treatises address this esoteric subject and they all provide useful information. This book, however, sets the standard in several respects. The writing is clear, economic and stylish. The text is not a survey or descriptive summary. It is essentially a work of analysis, interpretation, and even advocacy. The judgment reflected is subtle and sound. It is comprehensive. Not only does this book identify the major issues and sources of law and policy within the antitrust field, it finds important legal signposts in obscure antitrust consent decrees, 60-year-old governmental policy statements, and long forgotten Congressional hearings where something still pertinent was expressed. Because it took the better part of the last three years of Professor Waller's life to research and write, we owe him, his family, his colleagues, and his students at Brooklyn Law School gratitude for this labor.

It is no less an accomplishment that Waller did not write Antitrust and American Business Abroad from scratch. It is the third edition of a classic study by a great man-the late Kingman Brewster-that the Bar Association of the City of New York commissioned in the mid-1950s.1 Forty years ago, every one of the United States's major allies was certain that the United States violated international law by enforcing its antitrust law to reach foreign persons and foreign conduct. As a matter of U.S. national interest, many U.S. citizens believed that having more stringent U.S. antitrust laws applied more severely to U.S. businesses than to their foreign competitors acting under weak or non-existent foreign antitrust regimes put U.S. businesses at an unfair competitive disadvantage in international markets.2 Foreign regulation and policy often protected foreign businesses from effective U.S. enforcement. For every successful extraterritorial antitrust enforcement action, there were numerous foreign cartels able to operate with impunity-especially in extractive industries, regulated industries, and commodity industries.

Brewster wrote a wonderful book that evaluated these concerns, identifying those worthy of credence and those that were misguided. His analysis influenced a generation of scholars, practitioners, and judges. The enforcement of U.S. antitrust law in foreign commerce became more balanced as well as more sensitive to the laws and policies of other nations. U.S. antitrust enforcement recognized the legitimacy of these laws and policies where explicitly approved by the governmental processes of U.S. trading partners. The approach was more practical, and more limited, to serve the important interests of the United States expressed in U.S. laws, but more fairly, with remedies that were often pruned to avoid overreaching. As a result, in significant part due to Brewster's reasoned advocacy, per se U.S. antitrust rules in international commerce were subjected to rule of reason restrictions two decades before this occurred in U.S. domestic antitrust.3

In 1981, Jim Atwood, an outstanding antitrust practitioner, revised and expanded the first edition-with Brewster's blessing.4 Atwood continued the analytical emphasis on identifying what was right and wrong about existing law. The book contained sound ideas, preserving the thrust and balance of the original. It was now a treatise that covered many more subjects and changed the focus to providing a reference work for the practitioner or jurist dealing with a specific international antitrust problem. The second edition broke important new ground in addressing the relationship between U. …

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