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86 Tex. L. Rev. 1159 (2007-2008)
Technocracy and Antitrust

handle is hein.journals/tlr86 and id is 1171 raw text is: Texas Law Review
Volume 86, Number 6, May 2008
Technocracy and Antitrust
Daniel A. Crane*
U.S. antitrust enforcement has declined in political salience over the past
few decades even while levels ofpublic antitrust enforcement and funding for the
antitrust agencies have remained generally consistent with those of earlier
periods. Antitrust has become a technocratic discipline in the minds of the
political elite, delegated by presidents and Congress to specialists in the Justice
Department and Federal Trade Commission (FTC). Nonetheless, antitrust re-
tains influential populist institutions, including the civil and criminal jury, an
adjudicatory system focused on binary determinations about guilt or innocence,
and an FTC that is constrained from exercising a norm-creation role. The tech-
nocratic shift begun by the political elite could be furthered by a variety of
reforms, including   separating  cartel enforcement from    other  antitrust
enforcement, moving from adjudication to administration, and granting the FTC
norm-creation powers. Technocratic reforms are justified by three key attributes
of modern antitrust-consensus on antitrust goals, resolution of the most divisive
ideological questions, and the absence of a need to balance the interests of iden-
tified groups.
I.   Introduction
There have been times in American history when antitrust was a
magisterial pursuit that stirred the public imagination, exposed visceral
ideological impulses,' and shaped perspectives on adjacent matters, like labor
* Visiting Professor, New York University School of Law 2007-2008; Associate Professor,
Benjamin N. Cardozo School of Law, Yeshiva University. Thanks to Kevin Collins, Harry First,
Eleanor Fox, Michael Herz, Maggie Lemos, Rick Pildes, Matt Spitzer, Kevin Stack, Stewart Sterk,
and Julie Suk for helpful comments. Earlier or partial versions of this Article were presented at
workshops at Cardozo, NYU, and Vanderbilt, where I benefited from many comments and
suggestions. Olga Kaplan and Bill Curran provided excellent research assistance.
1. See generally RICHARD HOFSTADTER, What Happened to the Antitrust Movement?, in THE
movement and its legislation are characteristically American.... The idea of competition as a

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