International Antitrust at the Crossroads: The End of Antitrust History or the Clash of Competition Policy Civlizations

This Review will suggest a theoretical explanation for the essentially pragmatic conclusion that the United States should continue to oppose negotiations at the WTO. This explanation has the virtue of drawing on the special quasi-constitutional role of antitrust policy in U.S. history, one that is in fact deeply connected to the political economy of U.S. federalism and which, therefore, leaves less room for U.S. acquiescence in the institutionalization of competition policy at the WTO than does even the pragmatic argument for continued U.S. opposition to multilateral and institutional approaches. This argument draws on the continuing centrality of federalism as a regulatory device for U.S. political economy, rather than on federalism\u27s role in maintaining the selfgovernance prerogatives, including antitrust immunity, of the Ameri-can states. It is worth noting that a federal antitrust policy became central to U.S. political economy a hundred years ago as a perceived necessity to circumvent the apparent inability of the states, due to a narrow reading of state authority to regulate the national economy, to regulate private power at a national level. The so-called populist conception of U.S. antitrust law focuses on the preservation of a counterweight to the concentration of private political power flowing from the rise of the transcontinental corporation. This Review willargue that it is federalism\u27s role in reinforcing the political accountability of national and state governments, and its correlative force in furthering individual citizen responsibility in both our federal and state political communities, that marries federalist political theory to the role of U.S. antitrust laws in reinforcing individual responsibility for economic liberty. Thus, together, U.S. federalism and U.S. competition law tap into a classical tradition of republican government, shaping our democracy and economy in mutually-reinforcing ways, so that the selfish and embittering aspects of extreme individualism are softened by the character-forming effects of participation in a competitive market economy and by democratic federalism\u27s role in buttressing responsible individualism. It is thus the continuing relevance of federalism\u27s structuring of U.S. political economy that shapes U.S. antitrust law and, accordingly, should limit U.S. participation in international antitrust lawmaking, for separating antitrust\u27s political dimension from its substantive economic component in a WTO negotiation might then risk undermining this carefully-constructed and uniquely American contribution to global diversity