Through a Glass Darkly: The Case against Pilkington plc. under the New U.S. Department of Justice International Enforcement Policy

Neuman, Jeffrey N. | January 1, 1996

An inquiry into subject matter jurisdiction under the 1995 Guidelines and in U.S. v. Pilkington, plc. requires a brief examination of the history of extraterritorial enforcement policy since the mid-1970s. This is set forth in section II. Next, in section III, the comment analyzes the ebb and flow of judicial approaches to U.S. antitrust subject matter jurisdiction, focusing on the pre- and post-FTAIA eras. Section IV looks specifically at the 1995 Guideline and the Justice Department’s grounds for asserting U.S. subject matter jurisdiction against Pilkington. In doing so, the comment suggests that in an interdependent global economy, an aggressive jurisdictional philosophy risks embroiling U.S. courts in disputes involving the competitive structure of transnational and foreign markets. While guarding U.S. domestic commerce from the direct spillover effects of international trade is a well accepted justification for aggressive antitrust enforcement, defending U.S. export opportunities has a “more ambiguous position in antitrust theory” and seems closer to competition policy and less like legal theory.19 Finally, in section V, the comment concludes that if U.S. international antitrust enforcement policy continues on its present course, it risks becoming a tool of strategic trade policy rather than a compliable body of public law.