International Antitrust Law & Policy: Fordham Corporate Law 2001 - Hardcover
International Antitrust Law & Policy: Fordham Corporate Law 2001 - PDF
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Chapter 1
RECONCILING DIVERGENT
ENFORCEMENT POLICIES: WHERE DO WE
GO FROM HERE?
Charles A. James†
I. INTRODUCTION
Good morning. It is an honor to be here to speak about the internationalization
of antitrust enforcement before such an esteemed and distinguished
audience. Over the years, the Fordham Corporate Law Institute’s annual
conference has been a wellspring of insightful analysis and fruitful exchanges
of ideas regarding the principles and trends that shape antitrust enforcement
policy in the international arena. Fordham is not merely a series of ‘‘state-ofthe-
law’’ lectures for which attendees can obtain CLE credits. It brings
together the leading thinkers and policymakers in the field for intellectual
debate, interplay, and hopefully the generation of insights that will guide
future directions. I hope that my comments today can contribute to the
Conference’s tradition of stimulating informed and productive discussions.
Antitrust law enforcement has existed for over one hundred years now,
and over the course of this relatively brief history legal practitioners have
been confronted with a variety of challenges regarding the interpretation and
enforcement of the antitrust laws. At the turn of the 20th century we were
faced with the fundamental difficulty of interpreting the Sherman Act –
because it could not possibly mean what it said – and with that came the
development of the rule of reason and the per se rule of illegality for certain
arrangements. In the 1950s we were confronted with the task of making sense
of the Clayton Act and its implications for merger enforcement. With the
1960s came the Great Structural Age of antitrust law, followed by the
introduction of economic rigor into antitrust analysis in the 1970s and 1980s.
As the 20th century came to end we saw the dawn of the so-called ‘‘New
Economy,’’ with many questioning the proper role of antitrust enforcement
in this ‘‘better, faster, high-tech’’ world.
Antitrust lawyers continue to grapple with many of these issues, but this
morning I would like to focus upon what I perceive to be one of the most
significant challenges confronting practitioners today - multi-jurisdictional
enforcement in an increasingly global economy.
Assistant Attorney General, Antitrust Division, U.S. Department of Justice,
Washington.
