Institutional Design and Federal Antitrust Enforcement Agencies: Renovation or Revolution?

Institutional design, properly defined, both circumscribes and defines the practice of antitrust law in the United States. The structure of antitrust law and enforcement in the United States reflects so many disparate strands of political thought and expression that it seems almost impossible that it could function, much less cohere. But that very mixture of currents and cross-currents is quintessentially American — and keeps the importance of institutional design very much alive and significant in U.S. antitrust law. And although fundamental reinvention is unlikely, incremental changes are both possible and desirable, particularly those within the discretion of the enforcement agencies themselves. Below, we discuss what kinds of changes may be useful for the enforcement agencies to consider.