Tuesday, January 23, 2024

28 U.S.C. § 517 allows the Department of Justice (DOJ) to file a statement addressing a governmental interest in any pending suit. This procedural tool laid dormant for decades, utilized sparingly in litigation involving foreign sovereigns. In the 1960s, the government expanded its use to aid in developing civil rights. In 2009, the DOJ deployed Section 517 in a new arena: antitrust. Since then, each administration has followed suit. Though initially criticized, these statements now draw praise from antitrust scholars as a cost effective means for DOJ advocacy. This Article challenges these accolades. Its foundation is an analytical assessment of the DOJ’s statements of interest in antitrust cases. This data exposes a dark side to such filings. This Article explains how the DOJ’s use of Section 517 can tempt underenforcement of antitrust laws and overreach by the executive branch. This Article further discusses how the DOJ’s use of Section 517 wastes already scarce resources necessary to implement the United States’ antitrust laws.

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