The Federalism Project

American Enterprise Institute

The Federalism Project

The growth and integration of national and global markets should make the world more competitive. Antitrust policy should become less important. Instead, globalization has produced the opposite result: a veritable antitrust proliferation.

In the United States, the Microsoft case has dramatized the increasingly aggressive antitrust role of state attorneys general. Abroad, more than ninety countries and the European Union now administer competition laws, applying sharply divergent antitrust standards to corporate mergers and other transactions.

The implications for consumer welfare are enormous. Hydra-headed antitrust enforcement is producing serious problems and paradoxes: 

·         Business firms need to comply with duplicative and often conflicting legal standards;

·         Extraterritorial antitrust is prone to be used for protectionist¾e.g. for anticompetitive¾purposes;

  • When no jurisdiction can give definitive approval to a transaction or practice and any jurisdiction can exercise a veto, restrictive, interventionist policies will crowd out more liberal policies;
  • Diplomatic misunderstandings and recriminations may contaminate other areas of mutual economic interest.

Possible solutions to these problems range from improved intergovernmental cooperation, to direct policy harmonization (including, within the United States, federal preemption), to a new regime of “structured competition” in antitrust policy modeled on U.S. corporation law.  

The New Antitrust Paradox: Policy Proliferation in the Global Economy  

In April 2003, the Federalism Project called upon leading antitrust scholars, jurists, and practitioners to explore routes to a new and better institutional design for global antitrust. The conference title consciously echoes The Antitrust Paradox (1978), Robert H. Bork’s landmark contribution to rigorous law-and-economics scholarship on antitrust policy. The same kind of scholarship, which has contributed so much to improving the substance of antitrust policy, may now provide a framework to understand the new problem of proliferating, multi-jurisdictional antitrust regulation.

conference agenda

speaker bios

paper abstracts

Keynote Addresses

Judge Richard Posner: Is Federalism Overrated?

Judge Diane Wood: Cooperation and Convergence in  International Antitrust: Why the Light is Still Yellow


AEI coverage and transcripts