Abe Fortas, prior to his elevation to the U.S. Supreme Court, opined that “Antitrust is as deeply imbedded in the American scene as baseball, bourbon whiskey, and aspirin. It is the principal — to some extent the only — structure of the U.S. economy.” See C. Evan Stewart & Piero Tozzi, “Enforcement in the Millennium — Back to the Future, or Forward Into the Past?,” BNA Mergers & Acquisitions L. Rep. 222 (Feb. 26, 2001). When Fortas offered that opinion, antitrust jurisprudence, regulation and enforcement were pretty much American enterprises exclusively. Today, however, other countries have their own antitrust jurisprudence, regulation and enforcement. The challenge for businesses (and for the lawyers who counsel them) is to navigate in, among and between antitrust regimes throughout the world, a number of which have different/disparate policy goals and agendas.
It would be ahistorical to argue that antitrust jurisprudence, regulation and enforcement have been consistent in the United States since the adoption of the Sherman Act in 1890. See C. Evan Stewart, “The Policies and Politics of Antitrust,” N.Y.L.J., Aug. 16, 2007. Indeed, more than 30 years ago, Robert Bork, in his seminal book The Antitrust Paradox: A Policy at War With Itself, wrote that “modern antitrust law has so decayed that the policy is no longer intellectually respectable. Some of it is not respectable as economics,…a great deal of antitrust is not even respectable as politics.” Robert Bork, The Antitrust Paradox: A Policy at War With Itself 418 (Free Press 1978; re-issued 1993).
