Lasting change in competition law and policy

Abstract

Abstract This is a time of passionate debate on the fundamental goals of competition law. Should there be a single overarching goal for all competition law and policy? Should that goal be framed in purely economic terms? Should antitrust focus on protecting the competitive process, preventing unfair market conduct, or the abuse of superior bargaining position? Should antitrust promote and protect democracy, address social and racial injustice, or address climate change and sustainability? How should multiple goals be administered, weighed, and traded off in enforcement priorities and litigation? There is a progressive turn in the USA at the moment. But regardless of the nature and direction of the desired change, there is the equally important issue of how to achieve lasting change that survives the inevitable change in enforcement personnel and political leaders over time. In this essay, I focus on how to achieve that lasting change regardless of the goals and direction of change that any particular jurisdiction seeks to adopt. Most of the specific examples come from current developments in the USA, but are illustrative of the process of lasting change in competition. Enforcement agencies are key players in this process, but are constrained by the constitutions, treaties, legislation, and court decisions of their jurisdictions. Any campaign for change therefore depends on the wise use of the full substantive and procedural powers assigned to them by the political branches of the government. Successfully achieving substantial change rarely happens by accident, and most often requires a combination of such factors as: (i) creatively using the full statutory powers assigned to the agencies, (ii) striving for a unified whole-of-government approach to competition policy and (iii) deeply engaging the general public.