Brooklyn Journal of Corporate, Financial & Commercial Law

First Page



Critics have accused the Trump Department of Justice (DOJ) and Trump-appointee-chaired Federal Trade Commission (FTC) of populism, deviating from the more technocratic standards that governed agency interventions during the Bush and Obama eras. The broad brush of politicization has been applied to the administration's handling of a wide variety of topics, ranging from marijuana and media mergers, to landmark lawsuits against Google and Facebook. But a more discerning eye is necessary here. The concept of the political has both authoritarian and democratic registers. The federal Google and Facebook antitrust cases reflected the democratization of high technology antitrust. Meanwhile, troublingly authoritarian tendencies (including a targeting of firms that seemed highly unlikely absent an effort to punish enemies and reward friends of the regime) characterized marijuana and some key media merger policy. Politicization is a complex and multifaceted feature of competition law enforcement. The challenge for antitrust is not to eradicate politics tout court. Rather, as the law and political economy movement teaches, it is to channel legitimate demands to restructure commercial life in ways that reflect and reconcile public values in a pluralistic democracy, harmonizing the interests of labor, consumers, and capital.