On June 26 the chairman of the Federal Trade Commission made a request that sounds like plain good sense. Antitrust cases drag on for years, Andrew Ferguson said, so the courts should rewrite their own rules and move them faster. Nobody rises to defend a five-year lawsuit, which is exactly why the idea deserves a second look.
Because Ferguson named the price of speed himself. Getting monopoly cases "to move at the pace of merger cases," he allowed, might mean the parties "don't get to do 12 expert reports." That is not trimming delay. It is cutting the evidence, and it is most reckless in the one kind of case where being wrong can never be taken back.
A faster calendar is administration. A thinner record is a thumb on the scale.
Speeding the calendar is not the same as thinning the proof
There are two ways to make a lawsuit go faster, and they are not the same thing. One is to stop wasting time: tighter schedules, fewer delays for the sake of delay. That is housekeeping, and no one should defend a docket that crawls on purpose.
The other is to cut how much evidence gets heard. Not every expert report earns its keep, and plenty of what makes these cases crawl is duplicative expert theater a firm schedule should trim. But in a monopoly case the whole fight lives in expert economics, because the questions that decide it are economic: what the market actually is, whether a firm truly has power over it, whether its conduct helped customers or harmed them. A cap that cannot tell a redundant report from the one that establishes the market is not trimming fat. It shaves the thing the verdict is supposed to stand on.
But only one of those mistakes can't be undone
Here is what a scheduling reform does not price. The two ways a court can be wrong are not the same kind of wrong. Clear a dominant firm that should have been stopped, and the harm is real, but the firm has not gone anywhere and the case can still be brought tomorrow. Break up a firm that should have been left whole, and there is no tomorrow.
Under-enforcement is not free either, and it would be dishonest to pretend otherwise. Some markets tip. Leave a dominant network in place through years of litigation and it can smother a young rival before it ever scales, and the competitive process that rival stood for may never be rebuilt. In those cases delay is not a minor cost. It can be its own irreversible mistake.
But the cure for a market that might tip is a faster clock, not a thinner file: expedite the schedule, order interim relief, presume what fast-moving markets make obvious. None of that means cutting the evidence in the one case whose remedy cannot be reversed. Under-enforcement narrows the asymmetry; it does not erase it. You can tighten a monopoly later, even after some of the damage is done. You cannot reassemble a company you have already taken apart.
Maybe the pieces thrive, as they did when AT&T was split apart. Maybe the scale and integration that made the firm worth something are simply gone. Either way, the call was made before the evidence was in.
Most cases never come near a breakup. They end in conduct remedies, an injunction or a consent decree a court can loosen or lift if it got them wrong, and for those, speed is close to free. The argument here is narrow. It bites hardest exactly where the remedy stops being a rule the firm must follow and becomes a firm taken apart.
That is why the proof matters most when the remedy is biggest, and the Justice Department's ad-tech case against Google is the live example. The government is seeking a forced divestiture, and at the remedy hearing the judge who sat through the full record pressed it hard on whether the breakup could be made to work at all: no buyer identified for the exchange, no path from an abstract divestiture to a workable order. Her ruling is still to come, and it may go either way. But whichever way it goes, she will have reached it on a full record. Thin that record and you take away the one thing that makes either answer worth trusting.
Grant it: delay really does help the monopolist
The complaint underneath all this is not wrong, and it is worth saying so plainly. A case that runs five years lets a dominant firm keep doing the very thing it stands accused of, collecting the gains all the while, with no remedy until the appeals run out. Microsoft litigated for years, watched its breakup reversed on appeal, and the lasting good came not from the slow march but from the conduct it was finally forced to stop.
So grant the premise in full. Justice delayed can be monopoly affirmed. The honest question is not whether speed has value. It is what you are willing to break to buy it, and who is doing the asking.
A prosecutor shouldn't write his own speed limit
That last question is the one a scheduling debate hides. Ferguson pointed admiringly to a Virginia federal court famous for its speed, the one lawyers call the rocket docket. He left out a detail. His own agency is litigating in that very court right now, and the Justice Department won a landmark monopoly case there just last year. The prosecutor was admiring the track his own races are run on.
Whether a 1934 statute actually lets judges rewrite civil procedure this way is a lawyer's question, best left to the lawyers. The economist's question is simpler: who gains from the rule, and who pays for it? This is not about one man's motives. It is about who writes a rule and who has to live under it, and a calendar the government designs would govern every conduct case, including the ones that end in the kind of irreversible breakup the government itself is seeking.
Speed can cut both ways, and a firm dragged through five years of litigation it should never have faced is a victim of delay too. If this were only about the calendar, Ferguson and the firms he sues would be on the same side.
But thinning the record is the part that is not symmetric. The party asking for the lighter process is the one that brings the cases and carries the burden of proof, and a thinner record is easier to satisfy a burden with than to rebut one. Lighten it to a prosecutor's convenience and you tilt the odds toward the house, not toward the right answer. The difference is measured in exactly the expert reports he was willing to trade away.
This is not a brief for any one company. Whether Google keeps its ad exchange is beside the point. The cost of breaking up the wrong firm is not paid by its shareholders. It is paid by the rest of us, in the companies and the growth that never come back.
None of this is a brief for the status quo either. Speed the calendar, end the stalling, push the clear cases to judgment. But the nearer a case comes to dismembering a company, the more proof it should take, not less, because that is the one verdict reality offers no appeal from. Ferguson has the disease right and the cure backwards.
You can't un-break a company.
