Antitrust Law as Industrial Policy: Should Judges and Juries Make it?
For 100 years, the Sherman Act has been at the core of America's industrial policy. Whether antitrust law can meet the challenge of that office for the next century depends on (1) its receptivity in principle to efficiency, growth, and innovation; (2) its ability to implement its principles in practice; and (3) the availability of supplementary mechanisms to insulate an occasional arrangement from the usual antitrust tribunals.
Industrial policy, in its most comprehensive sense, is the sum of everything that affects production and innovation, as well as consumption and investment. No longer so confident that our mix of policies enables or encourages American industry to rival foreign efficiency and innovation, I ask whether antitrust law supports or impedes productivity, efficiency, and innovation, discussing briefly disputes about these matters and what courts actually do. I then consider some of the practical impediments in antitrust litigation to giving efficiency and innovation full measure, concluding with a reminder that other institutions can supplement antitrust law where it proves to be deficient.
"Industrial policy" is a term without precise meaning. It embraces the mix of government decisions affecting the demand for and the supply of goods and services, both for further production and for ultimate consumption. Taking other relevant social values into account, industrial policy seeks to maximize goods and services desired by our people as consumers and as citizens. This broad definition reminds us that the composition, cost, progress, and volume of the national product is affected by virtually every public policy--far beyond those in the conventional basket of competition policies.