Recent years have witnessed a significant wave of initiatives aimed at expanding antitrust’s substantive reach and reinvigorating enforcement, both to counter decades of weakened enforcement and to address contemporary economic realities. These efforts have coincided with calls to “democratize” antitrust by engaging the public in policymaking. Barak Orbach argues that such “democratized antitrust” is impractical, but boundary-pushing dynamics are central to the evolution of antitrust. He offers a conceptual guide for antitrust boundary pushing.
This article kicks off a symposium that explores the relationship between democracy and antitrust. In theory, Congress passes laws, the antitrust agencies implement them through rules and policies, and the courts assure these rules and policies accord with the relevant statutes and Constitution. In practice, Congress is catatonic, the agencies are commonly left to reinterpret the means and ends implied in decades old laws and apply them to an entirely different world, and the courts have historically shown their own willingness to interpret and reinterpret the meaning of the laws, belying the impression that there is always an obvious and objective singular understanding and application of the antitrust laws. Can the agencies make the case for reinterpretation by testing the limits of their rulemaking? Is that bad enforcement or a legitimate form of governance that acknowledges that the creation of new rules and interpretation of old laws are a messy and tortuous process? Often lost in all of this is a meaningful connection between policy and public opinion. Is there a legitimate place for more direct public engagement with antitrust, and what would that look like? Commentators often pit the desires of the public against the expertise of the government bureaucracy. What is the role—and democratic limit—of bureaucrats in setting the antitrust agenda and its goals? You can read the symposium articles from Barak Orbach, Sean Sullivan, Erik Peinert, Yunsieg Kim, and Reed Showalter as they are published here.
Calls to democratize antitrust have gained traction in recent years, reaching their height during the Biden administration, when antitrust agency leaders explicitly embraced versions of this vision. As framed by proponents, democratization aims to embed transparency, meaningful public participation, and accountability in antitrust institutions while keeping expert analysis central. For example, Assistant Attorney General Jonathan Kanter argued that, for too long, antitrust had been cloaked in “technocratic language” and should instead speak in “the language of the people and the markets to empower participation in the antitrust enterprise.” Similarly, Federal Trade Commission (FTC) Chair Lina Khan committed “to further democratize the agency,” as the Commission is “a public body whose work shapes the distribution of power and opportunity across our economy” and, hence, it must be “in tune with the real problems that Americans are facing in their daily lives and using that understanding to inform [the Commission’s] work.” Critics caution, however, that this approach veers toward populism and risks politicizing enforcement, increasing market uncertainty, diluting rigorous economic analysis, and running afoul of statutory and constitutional limits.
Advocates of democratized antitrust often invoke history to support their proposals, though these accounts are not always accurate. While Congress enacted the principal antitrust statutes in response to “overwhelming public demand,” contemporary calls to democratize antitrust frequently refer to public opinion to justify expansionary reform proposals. In practice, proponents often selectively cite voices that align with their preexisting views.
To date, “democratized antitrust” has mostly remained a slogan grounded in a set of ideas. Although some elements have been implemented through discrete initiatives—such as plain-language guidance and expanded opportunities for public input—the concept has yet to mature into a concrete policy framework that could be debated and refined.
This article advances a more practical and organic approach to antitrust reform and public engagement: a boundary-pushing framework. A defining feature of United States Antitrust policy—unusual in federal law—is its common-law evolution, in which doctrines develop through litigation and enforcement actions of the antitrust agencies. Federal enforcers—above all, the Department of Justice (DOJ) Antitrust Division and FTC—propel that evolution by testing and sometimes pushing the boundaries of existing doctrine. Consistent with democratic principles, such boundary pushing operates within a set of checks and balances that includes judicial review, legislative oversight, and other mechanisms. Public engagement belongs in this framework as a tool for legitimacy and accountability—not as a vote on outcomes. This article examines the mechanisms of boundary pushing in antitrust and offers guardrails to improve the quality of proposed doctrinal reforms and increase their likelihood of adoption.
Channeling public engagement
Before turning to the mechanics of antitrust’s boundary pushing, it is important to consider what role, if any, public engagement can realistically play in that process.
Richard Hofstadter’s account of antitrust’s transition—from a “broad movement of militant mass sentiment” in the early 20th century to a more technocratic enterprise—highlights the enduring tension that proposals to democratize antitrust aim to address. As antitrust retreated from populism, external scrutiny waned, allowing ideologues and interest groups to elevate skepticism of enforcement into a core feature of antitrust jurisprudence. Reviving public engagement may help counter that drift.
Tim Wu popularized the idea. He argued that the “incredibly secretive and technical” nature of antitrust inquiries contributed to the disappearance of the “tradition of spirited public debate” over high-stakes antitrust matters. He, therefore, proposed to re-democratize antitrust through direct public participation. Yet his account demonstrates the limits of democratized antitrust. First, Wu’s historical narrative is inaccurate: fluctuations in public engagement have taken the narrow form of references to antitrust in public discourse, specifically through popular media outlets and political narratives. Direct public participation in policymaking or enforcement has never occurred. Second, the complexity of high-stakes antitrust matters typically requires substantial time and expertise to master, making them ill-suited to direct public participation. Third, the antitrust process is “secretive” because the competitive process requires enforcers to treat sensitive business information as confidential.
Properly understood, public engagement may strengthen legitimacy and accountability of the antitrust enterprise when it is channeled toward input, explanation, and learning—not treated as a plebiscite on outcomes. The objective is to surface information, test priorities, and improve reason-giving while preserving expert analysis, protecting the confidentiality of sensitive business information, and complying with general procedural standards. To develop such public engagement, enforcers should explain in plain language core policies and key enforcement actions, invite input where sentiment can help identify priorities or calibrate remedies, and give reasons that are reviewable at law. Put simply, the agencies should use public opinion to evaluate what to investigate, not how to decide.
Even this narrow form of engagement is challenging to establish and sustain; it demands an institutional commitment and resources that the agencies may lack. Some aspects of antitrust policy are counterintuitive and unlikely to gain broad public acceptance. For example, vigorous competition yields unevenly distributed gains and losses. In public discourse, such outcomes are often portrayed as evidence of corporate power and greed. Similarly, innovation that benefits consumers can disrupt firms and eliminate jobs, leaving affected parties convinced the system is rigged against them. Likewise, most antitrust matters involve mixed effects and require tradeoff analysis—nuance that travels poorly in attention markets.
With those limits in view, we can turn to the mechanics of antitrust’s boundary pushing—the institutional pathways through which public engagement, judicial review, and legislative oversight interact to keep policy innovation within legitimate bounds.
Antitrust’s common‑law engine
U.S. antitrust law is designed to evolve. Congress drafted the core statutes in broad, open-textured terms, leaving it to courts to develop and refine standards over time. This choice created a system in which legal norms develop through litigation, with agencies, private parties, and states all able to bring matters that invite judicial elaboration. The result is a common-law engine in which multiple actors can test doctrinal limits, and where each stage of the process incorporates checks that help to maintain legitimacy and public trust.
Indeed, since the 1890 enactment of the Sherman Act, the Supreme Court has repeatedly emphasized that it views “stare decisis [the idea that the Court follows its own precedents] as having less-than-usual force in [antitrust] cases” and that, as “economic understanding evolves,” it feels “relatively free to revise [and] reverse antitrust precedents that misperceived a practice’s competitive consequences.” This structured flexibility has proved effective, although its pace is slow. It rests on an institutional division of labor.
Congressional Responsibilities. Congress set the frame with the Sherman Act’s open-textured prohibitions and later expanded the toolkit through the Clayton and FTC Acts. Subsequent amendments have fine-tuned enforcement standards while preserving the statutes’ breadth. Even when statutes remain unchanged, Congress steers priorities through oversight hearings, letters, and appropriations decisions—signals that can prompt agency recalibration and frame the policy debate. These levers allow Congress to recalibrate enforcement priorities while remaining accountable to voters.
Judicial Responsibilities. Courts are the primary expositors of antitrust. Treating it as a common-law enterprise, the judiciary absorbs new facts and economics through litigation and, when necessary, through review of agency action. Judicial oversight extends beyond deciding private and government cases: federal courts also examine whether agency rulemaking and administrative adjudications stay within statutory bounds and follow required procedures. In practice, courts accept or reject novel theories, calibrate the limits of statutory authority, and treat the Merger Guidelines and similar policies as persuasive rather than binding. Litigated outcomes—not policy statements alone—delineate the line between orthodoxy and innovation.
Administrative Responsibilities. The DOJ and FTC contribute to the development of antitrust doctrines through enforcement actions, policy initiatives, and, in the FTC’s case, certain rulemaking. The DOJ brings civil and criminal matters in Article III courts; the FTC proceeds both in federal court and through administrative adjudication. Both agencies rely on soft-law tools—guidance, workshops, and policy statements—to explain methods, signal priorities, and build review-ready records. When the FTC tests the scope of its competition rulemaking authority or either agency advances a novel theory of harm, those efforts are ultimately subject to judicial review for statutory authority, procedural compliance, and evidentiary support. Across both agencies, disciplined reason-giving, transparent processes, and credible evidentiary records are essential to durable change, so innovation in enforcement can withstand judicial scrutiny.
Private Enforcement. Sections 4 and 16 of the Clayton Act authorize private plaintiffs to seek treble damages and injunctive relief. By authorizing private lawsuits, Congress enlisted individuals and firms as partners in policing the competitive process. Private actions expand the reach of enforcement, surface issues that might otherwise go unaddressed, and generate judicial decisions that feed back into the common-law development of doctrine. They also keep elements of enforcement directly in the hands of market participants, reflecting a democratic design in which affected parties can act without waiting for public officials to intervene.
State Attorneys General. State attorneys general enforce both federal and state antitrust laws, sometimes in coordination with federal agencies and sometimes independently. Their actions create additional venues for testing legal theories and provide a link between national policy and local economic realities. Because these officials are directly accountable to their electorates, their participation adds another democratic check to the system.
Taken together, these roles form an integrated system for policy evolution. Agencies and litigants can press the limits of existing precedent; courts assess and refine the law; and Congress, the states, and private actors contribute their own priorities and perspectives. This structure channels boundary-pushing through transparent, contestable processes and subjects it to independent review. It is within this architecture that pushing the line becomes both possible and legitimate—so long as the effort remains grounded in law, reasoned explanation, and the safeguards that keep ambition from sliding into overreach.
Modes of boundary pushing
Given the design of U.S. antitrust law, some boundary pushing is not only inevitable but also necessary to keep doctrine aligned with economic realities. Congress enacted capacious statutes and seldom revises them; courts speak only through the cases brought before them. Public and private plaintiffs, therefore, periodically push the envelope to refine legal norms—subject to judicial review and, in the FTC’s case, review of competition rules for authority, procedure, and evidentiary support.
This article focuses on boundary pushing that underpins current expansionary trends in enforcement and policy. It is equally important, however, to recognize that boundary pulling also plays a critical role in antitrust’s evolution. While pushing seeks to expand the scope of antitrust law, pulling aims to contract it. Over time, these forces counterbalance one another. Though conceptually related, they differ in both aims and mechanisms.
Boundary pushing (or pulling) has two common modes—edge testing and leaps. Edge testing operates at the margins of settled doctrine: extending an existing test to analogous conduct (e.g., Weyerhaeuser (2007)) or clarifying its application in a novel factual setting (e.g., American Needle (2010)). In the landmark Google search enginecase (2024), the DOJ successfully pushed the boundaries of cognizable antitrust harm to explicitly include the foreclosure of innovation. As Judge Amit Mehta observed, several prior decisions treated adverse effects on incentives to innovate as cognizable antitrust harm, and his opinion clarified the standard.
By contrast, leaps seek to move the doctrinal line itself—by overruling precedent or adopting a new legal standard (e.g., Trenton Potteries (1927), Socony-Vacuum (1940), GTE Sylvania (1977), Leegin (2007)). To illustrate a meaningful expansionary leap, consider Northern Securities (1904). There, the Court overruled E. C. Knight (1895) and extended the Sherman Act’s reach beyond collusive agreements to structural consolidation.
Some matters combine both edge testing and leaps (e.g., Microsoft (2001)). Cases that proceed on multiple fronts—testing several edges at once or pairing edge tests with a doctrinal leap—are particularly complex. They demand cleaner records, sharper limiting principles, and more tailored remedies to avoid doctrinal spillover; the legitimacy criteria must be satisfied on each front, not merely in the aggregate.
The Biden administration pursued a broad campaign of testing doctrinal edges—and at times attempting leaps—across mergers, labor markets, platforms, and remedies, often simultaneously. Each matter, taken individually, may be a legitimate effort to clarify or extend the law through transparent processes and judicial review. But the cumulative effect of many ambitious theories advanced at once can strain institutional capacity, raise error costs, and—if losses mount or explanations are thin—erode the agencies’ credibility. The portfolio lesson is to prioritize, sequence, and scale: reserve the most ambitious claims for records built to withstand scrutiny; pace novel theories so courts can absorb them; and pair innovation with disciplined reason-giving, lest ambition dilute legitimacy.
Guardrails for boundary pushing
Efforts to push legal boundaries invite controversy and sometimes fail. A few guardrails can improve design and raise the odds of success. They are strategic tools, not bright‑line rules. Used properly, guardrails guide whether to invest in a novel theory, how to stage it, and how to contain collateral risk while preserving legitimacy with courts, Congress, and the public. Exceptional matters—acute harms, statutory gaps, or unusually strong records—may justify departing from a guardrail. When they do, the departure should be explicit, justified based on existing principles (ex ante), and audited only after the harm arises (ex post), so regulatory ambition bends without drifting and enforcement remains worthy of trust.
1. Candidly Identify and Own the Novelty. Institutional frictions—especially stare decisis—tempt actors interested in change (or advocating for their clients) to portray boundary‑pushing as ordinary enforcement. Adversarial litigation will surface novelty quickly. Be explicit when an action or policy pushes doctrinal boundaries. Acknowledge whether it is an edge test or a doctrinal leap, explain why, and frame the move in terms that can withstand scrutiny. Candor is essential to legitimacy and institutional credibility.
2. Anchor in Necessity and Proportionality. Start with a clear diagnosis of the harm and theory of harm and explain why existing tools are insufficient. Pursue a leap only when edge‑testing cannot address the problem. Match the scope of the proposal to the gravity of the harm and the strength of the record.
3. Build Evidence That Travels. Novelty does not excuse thin support. Use credible studies, retrospectives, and agency experience; confront contrary evidence; state current law precisely; and explain why narrower alternatives fall short. Build a portable record that can persuade courts across circuits, Congress, scholars, and future administrations—not just today’s supporters.
4. Design for Judicial and Public Scrutiny. Anticipate review by courts and criticism by scholars and other commentators. Offer reasoned explanations; address reliance interests; segment severable components; and use plain language that makes the rationale accessible to non‑specialists, whose support underpins democratic legitimacy.
5. Contain Uncertainty, Don’t Leverage It. Boundary pushing should clarify the law, not cloud it. Unwinding mergers previously cleared to close can reverberate beyond the parties, raising perceived ex post risk for ordinary transactions. Likewise, procedural extensions (e.g., timing agreements, second requests) untethered to fact‑finding can chill investment. Durable strategies acknowledge reliance interests and error costs, state the proposition being tested, supply limiting principles, and channel disputes to review on the merits rather than process friction. Using fog as leverage backfires; rules that travel across cases reduce long‑run uncertainty.
6. Sequence and Prioritize Ambitious Tests. Organize and pace the introduction of aggressive theories so institutions and the judiciary can absorb them. Reserve the most far‑reaching claims for matters with the strongest records and clearest harms, and stage others so learning compounds rather than overwhelms.
7. Engage the Public Without Surrendering Expertise. Use public input to identify market trends, set priorities, and build broad support for the antitrust enterprise—not to draft enforcement policies or determine case outcomes. To foster and sustain such engagement, provide accessible, plain-language materials, including press releases, media interviews, and direct outreach to antitrust professionals and the public. The general principle is sound: public engagement can enhance enforcement, but cannot substitute for knowledge and expertise.
Conclusion
For more than 130 years, antitrust law has evolved through cycles of boundary pushing and boundary pulling within a multilayered system of scrutiny, adjudication, and oversight. Both expansion and contraction are periodically necessary, yet either can, if overdone, harm the competitive process and the economy. History suggests that when expansions or contractions come in waves, their champions tend to be overzealous—often without realizing it. To reduce the risk of overreach, this article proposes a framework for disciplined boundary pushing suited to the current cycle.
Author Disclosure: The author reports no conflicts of interest. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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