BESPOKE ANTITRUST

Antitrust laws in the United States and competition rules in Europe are usually set out in statutes of general applicability, written in broad, almost constitutional, form. This is a 'one size fits all' statutory style. There is another possible style of antitrust, which we call 'bespoke antitrust.' It consists of specialized rules customized for the industry, for a particular plaintiff or defendant, or for the practice in question. In this article we describe the under-appreciated trend toward bespoke antitrust law. We think that this trend shows up in case law, enforcement agency practice, and regulatory alternatives. We also look at existing and new proposals to create more bespoke antitrust rules and institutions to deal with the challenges of digital platforms and other dominant firms in the tech space. This, we believe, is a particularly important example of the trend toward more bespoke rules for competition law. We conclude with a cautious endorsement and some caveats. There are important areas where targeted efforts are worth the price, but bespoke antitrust can be expensive to implement. More importantly, it can threaten the rule of law by carving out exemptions if society (or the beneficiaries) are willing to pay the price. Nevertheless, custom tailoring does have an important place in the design of antitrust law.
I. INTRODUCTION: OFF-THE-RACK OR COUTURE? Antitrust law in the United States ('U.S.') is often referred to as the 'Magna Carta of free enterprise.' (1) It provides the ground rules for [...]