Monday, February 1, 2010
The Wall Street Journal - WASHINGTON—If populism is emerging as a potent new force in American politics, then government trustbusters and sympathetic Democrats in Congress stand ready to offer a new outlet. But first, they'll have to overcome a major hurdle: the judges.
Over the past three decades, U.S. courts have sharply limited the scope of the 120-year-old Sherman Antitrust Act, which has been used to target companies from Standard Oil to Microsoft Corp. In so doing, judges have clipped the wings of two agencies charged with policing anticompetitive behavior: the Justice Department and the Federal Trade Commission.
Now Democrats on Capitol Hill are joining forces with antitrust cops to push back against the judicial tide. Congress is preparing measures to reverse the effect of court rulings that have made it harder for the government to win antitrust cases and break up monopolies, while the FTC and Justice Department are trying out new legal tactics to reclaim lost powers
If successful, the efforts could presage an upswing in antitrust cases against America's leading companies and reverse the legal trends of recent years.
Sensing a shift in the political landscape, big business is girding for a fight. "Voters are demanding jobs and growth, but Washington is moving in the opposite direction by advancing an agenda focused on increased litigation against business," said Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, an offshoot of the Chamber of Commerce that seeks to ease the burden of civil litigation for businesses.
Antitrust enforcers since the 1980s have had an increasingly hard time winning cases against accused monopolists. Judges have largely agreed with the reasoning of the so-called Chicago School of economists, which holds that big companies aren't necessarily bad and that the market—not government—is best placed to promote competition.
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