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How Antitrust Lost Its Goal


Barak Orbach


University of Arizona

March 1, 2013

81 Fordham Law Review 2253 (2013)
Arizona Legal Studies Discussion Paper No. 13-05

Abstract:     
During the first seven decades following the enactment of the Sherman Act, competition was the uncontroversial goal of antitrust. The introduction of the consumer welfare standard led to the dissipation of “competition” as the goal of U.S. competition laws. This Essay explores how antitrust lost the goal of competition and argues that this goal should be restored. The Essay reevaluates several influential antitrust propositions. First, while “consumer welfare” was offered as a remedy for reconciling contradictions and inconsistencies in antitrust, the adoption of the consumer welfare standard sparked an enduring controversy, causing confusion and doctrinal uncertainty. In effect, the consumer welfare standard established the greatest antitrust paradox yet. Second, the small-business interests hypothesis, which has often been used to explain the enactment of the Sherman Act, is inconsistent with the well-documented historical record. Third, the logic of Robert Bork’s consumer welfare thesis requires restoration of “competition” as the goal of antitrust. The Essay concludes with a straightforward observation: “consumer welfare” may continue serving as the stated goal of U.S. competition laws but, practically, antitrust has always been and will always be about the preservation of competition.

Number of Pages in PDF File: 25

Keywords: antitrust, competition law, goals, consumer welfare, Robert Bork, competition

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Date posted: January 28, 2013 ; Last revised: April 2, 2013

Suggested Citation

Orbach, Barak, How Antitrust Lost Its Goal (March 1, 2013). 81 Fordham Law Review 2253 (2013); Arizona Legal Studies Discussion Paper No. 13-05. Available at SSRN: http://ssrn.com/abstract=2207250

Contact Information

Barak Orbach (Contact Author)
University of Arizona ( email )
1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)
520.858.0025 (Fax)
HOME PAGE: http://www.orbach.org

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