Although competition has been an ideological beacon of economic governance ever since the birth of the Union, it has largely been an internal affair. External competition from foreign producers has failed to be factored into antitrust scrutiny. On the contrary, the government, through its trade policies such as antidumping remedies, has often hampered foreign competition to protect domestic producers at the expense of all the benefits that foreign competition might bring to the economy. Antidumping remedies tend to create a legal cartel: they fix the import prices and generate non-price predation by petitioners. However, the Federal Trade Commission (FTC)'s potential antitrust mission over trade remedies is severely obstructed by a judicially created antitrust immunity labeled the "Noerr-Pennington doctrine." As a legal reincarnation of political pluralism under the Warren court, this doctrine expansively immunizes antidumping petitioners from any antitrust investigations over their potentially trade-restraining behaviors.
Against this backdrop, I argue in this Article that the failure to allow antitrust oversight when implementing trade remedies should be rectified by means of judicial and administrative intervention. I do not propose herein a repealing of the current antidumping statute: such a drastic measure would be politically infeasible in the current protectionist atmosphere of Congress. Instead, I take a more modest yet realistic stance: sanitizing antidumping remedies by bringing certain abusive behaviors in the antidumping proceeding, such as deliberate misrepresentations of facts and data, under antitrust disciplines. In order to prevent such abuse of antidumping remedies by rent-seekers, courts should interpret the currently narrow definition of the sham exception broadly enough to effectively foreclose non-price predation. At the same time, the FTC, under its vested antitrust authority, should reinforce its surveillance and enforcement activities to guard against the abuse of trade remedies by domestic producers. In the long-term, these targeted judicial and administrative interventions will eventually lead the public, and legislators alike, to rethink the antidumping statute itself.
Remedying Trade Remedies,
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/179