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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 Articles 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 PARANOID STYLE IN AMERICAN POLITICS AND OTHER ESSAYS 188, 195-96 (1966) (The antitrust movement and its legislation are characteristically American.... The idea of competition as a

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