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The Case for Rebalancing Antitrust and Regulation

Howard A. Shelanski, 109 Mich. L. Rev. 683-732 (2011)
NB: This article has been nominated by readers for the academic category, general antitrust section of the 2012 Antitrust Writing Awards. Click here for all winning-awards articles

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Readers vote is closed since March 1st, 2012. Readers’ vote has nominated 2 articles for each of the Awards. This short list has been communicated to the Board, with the articles nominated by the Steering Committees. The Board will decide on the award-winning articles on March 27, at the Awards ceremony to take place in DC. See vote results online here.

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The Supreme Court’s decisions in Verizon v. Trinko and Credit Suisse v. Billing reduced the reach of antitrust law in regulated industries; they did so even where Congress expressly preserved antitrust enforcement, and even though the Court itself had long declined to block antitrust suits against regulated firms except in unusual circumstances. This Article analyzes the reasoning and potential consequences of Trinko and Credit Suisse. It provides a critique of the Supreme Court’s redrawing of the relationship between antitrust and regulation and explains how Trinko and Credit Suisse could saddle regulators with a choice between inefficiently strong and overly weak regulation as economic conditions change in regulated industries. The Article concludes that consumers and industry would benefit from a rebalancing of antitrust and regulation and discusses several possible means to that end.

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