Antitrust and Competition Law: Competition has proven an incredibly strong mechanism for providing incentives to reduce costs of production and distribution, to identify needs and find effective solutions to them, and to align resources with their best uses. To be sure, competition leaves some investments and some workers “stranded” for periods of time.  But it has proven far superior at providing efficient production and distribution and at adapting to changing conditions than any other system.  And competition also is more consistent than any alternative with notions of personal liberty.  Antitrust law endeavors to protect competitive forces, and can be useful in constraining anti-competitive conduct.  But too often it has been misused to handicap successful competitors.  The law of tying, for example, often is directed against competitors who have come to dominate one market and are trying to improve their core products or to develop complementary ones.  It is potentially a threat to continued economic development in a wide variety of businesses.  Similarly, other branches of the law regulating monopolization increasingly are deployed by competitors against stronger rivals and by government officials seeking to exert more control over markets, to advance the interests of preferred enterprises.  In the extreme, discretionary authority over competitive enterprises, over the terms on which business is conducted, and over details of the organization of particular industries threatens to turn competitive businesses into regulated, state-governed entities. Regulation and Public Policy: A large set of regulatory powers in the modern administrative state affect the vitality of the rule of law.  Rule of law scholars always have been concerned about the exercise of government power, but increasingly that power is wielded by administrators.  That fact raises concerns over the relation of executive officials to the chief executive – in America, the relation of administrators to the President.  While some commentary worries about the scope of executive power, it is equally important to ask what effective controls exist to reign in the power of unelected administrators.  In the fields of communications, securities, and financial services, for example, the principal decisions respecting the operation of the industry are taken by administrative officials.  Often, those decisions are taken with only the vaguest legislative direction.  Often, those decisions are implemented in ways that enhance administrators’ discretion.  And often, too, the substantive decisions move us away from policies that promote economic efficiency and individual liberty.
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