Dr. Laura Phillips Sawyer, Associate Professor here at the University of Georgia School of Law, earlier this month presented her most recent scholarship, related to law and extraterritoriality, at the Antitrust Division of the U.S. Department of Justice.
Phillips Sawyer’s research paper, entitled “Jurisdiction Beyond Our Borders: United States v. Alcoa and the Extraterritorial Reach of American Antitrust, 1909–1945,” offers a historical explanation for the origins of antitrust extraterritoriality.
The 1945 decision of the U.S. Court of Appeals for the Second Circuit in Alcoa is famous in antitrust law for several reasons. To be precise, it:
- Narrowly defined market share in favor of the federal government;
- Expanded the category of impermissible dominant firm conduct;
- Interpreted congressional intent as protecting an egalitarian business environment; and
- Established the extraterritorial reach of U.S. antitrust laws.
Although each of those contributions has incited legal commentary and critique, Judge Learned Hand’s decision to redraw the territorial application of U.S. antitrust has remained largely unexamined.
The essay that Professor Phillips Sawyer presented advances two arguments:
- First, right before and during the interwar years, the antitrust doctrine of strict territoriality had been eroded through a series of distinguishing cases and contradictory congressional policies.
- Second, the well-documented connection between European fascism and cartelization provided strong external pressures to extend American antitrust law and policy abroad and to redouble anticartel and antimonopoly provisions at home. By 1945 extraterritorial antitrust emerged as an acceptable means of governance to curtail international cartel behavior, discipline monopolies at home, and impose an American-led liberal—and hegemonic—internationalism on much of the rest of the world.
The essay will appear in American Democracy and Antimonopoly, a Tobin Project publication, edited by Professors William Novak and Daniel Crane. Additionally, it will play a major role in the first chapter of Phillips Sawyer’s next book, which explores the macroeconomic pressures on American antitrust law and policy. Her first book, American Fair Trade: Proprietary Capitalism, Corporatism, and the ‘New Competition,’ 1890-1940, was published by Cambridge University Press in 2018.