Competition Policy and the Business of Regulating Markets: Public and Private Responses to Antimonopoly Sentiment in the 20th c

Antitrust law, or competition policy, has received renewed public interest. This resurgent interest been led by antimonopoly activists and antitrust scholars; however, a great deal of attention has focused on historicizing, or denaturalizing, the current antitrust regime. Drawing upon both domestic and international case studies, this panel examines how public and private enforcers sought to expose real or perceived anticompetitive conduct and how those attempts shaped prevailing notions of antitrust across the twentieth century. Sean Seyer examines how persistent accusations of illegality during the early interwar period affected the creation and operation of a patent pool for the nascent American aircraft industry. Laura Phillips Sawyer demonstrates how Alcoa’s involvement with international cartels and regulators’ attempts to block that activity culminated in the establishment of antitrust extraterritoriality by 1945. The Alcoa case revived post-WWII antitrust enforcement against cartelization and monopolization. That robust public enforcement encouraged private litigation as well, which Peter Labuza explores in his paper on the rise of private plaintiff attorneys antitrust litigation and the use of treble-damages suits against major Hollywood studios. Finally, Susanna Fellman and Martin Shanahan widen the analytical framework by analyzing international cartels across both time and space. They investigate how domestic institutional frameworks, or legal regimes, have shaped and limited firms’ decision to cooperate with international cartels. This work challenges several basic assumptions about so-called rational, profit-maximizing firms and instead insists that historical contingency can reorder preferences, often in surprising ways. Each of these papers analyzes how firms, cooperative business organizations, and the litigants attempting to regulate them make strategic decisions based on a particular incentive structure and economic context, decisions that often lead to feedback loops that embed and naturalize particular contemporary competition policy regimes.