March 2011 Vol. 109 No. 5 THE REVIEW

The Case for Rebalancing Antitrust and Regulation

Howard A. Shelanski

The Supreme Court's decisions in Verizon v. Trinko and Credit Suisse v. Billing reduced the reach of antitrust law in regulated industries; they did so even where Congress expressly preserved antitrust enforcement, and even though the Court itself had long declined to block antitrust suits against regulated firms except in unusual circumstances. This Article analyzes the reasoning and potential consequences of Trinko and Credit Suisse. It provides a critique of the Supreme Court's redrawing of the relationship between antitrust and regulation and explains how Trinko and Credit Suisse could saddle regulators with a choice between inefficiently strong and overly weak regulation as economic conditions change in regulated industries. The Article concludes that consumers and industry would benefit from a rebalancing of antitrust and regulation and discusses several possible means to that end.

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