Home > Journals > LAWREVIEW > Vol. 91 > No. 1 (2017)
Critics have been complaining that there are too few jobs in America and too much inequality. They have been calling for broadening the goals of antitrust and, at the very least, for more antitrust enforcement. More enforcement could be expected to have an impact on the concentration of power and on jobs, but even recalibrating the goals of antitrust law cannot, by itself, realistically be considered a panacea for eliminating unemployment or inequality overnight.
At the same time, other countries already have broader goals written into their own laws, including their competition laws, which protect jobs and limit foreign investment. These laws create asymmetries that may be placing the United States at a disadvantage. Today, America has the opportunity to expand the goals of its laws to address these asymmetries, either through broadening the interpretation of current legislation—which could but need not include the antitrust laws—or by enacting new laws. Such changes would present the challenge of deciding who should apply these broader goals and how they should be prioritized and balanced. If the antitrust agencies are not the choice to assume this responsibility, an expanded CFIUS or a newly constituted foreign investment review board would be possible alternatives. These changes could foster an environment in which it would be easier for future trade agreements to assure a level playing field for the United States and its trading partners.
The devil is in the details, of course, and the devil would feel right at home in this imbroglio. Broadening and strengthening antitrust enforcement and foreign investment review sounds simple enough but would raise a dizzying host of complications and uncertainties. Yet, just because something is hard to measure or hard to solve is no reason to ignore it. If loss of jobs and concentration of power are threatening to harm the nation’s economy and are not being adequately checked, changing nothing would be an outcome but would not be a solution. Not all of the changes currently being proposed make equal sense, but for those that make the most sense, the time for serious deliberation is now.