Fairness and Antitrust Reconsidered: An Evolutionary Perspective

42 Pages Posted: 1 Oct 2013 Last revised: 12 Sep 2014

See all articles by Thomas Jeffrey Horton

Thomas Jeffrey Horton

University of South Dakota, School of Law

Date Written: September 30, 2013

Abstract

This Article reconsiders the antitrust fairness-versus-welfare debate from an evolutionary perspective. It discusses the various arguments against applying fairness norms in antitrust cases and then sets forth the arguments for reincorporating fairness norms into antitrust analyses. Building upon the evolutionary analyses in previous papers, and the growing "enthusiasm or approaches that try to link our morality to our evolutionary biology," This article recommends that courts and antitrust regulators apply an evolutionary analysis instead of the static economic consumer and total welfare norms in vogue today. The new focus would be on fairness norms, intent, and competitive harm.

Keywords: Antitrust, Fairness, Evolutionary Analysis

Suggested Citation

Horton, Thomas Jeffrey, Fairness and Antitrust Reconsidered: An Evolutionary Perspective (September 30, 2013). McGeorge Law Review, Vol. 44, No. 4, 2013, Available at SSRN: https://ssrn.com/abstract=2333905

Thomas Jeffrey Horton (Contact Author)

University of South Dakota, School of Law

414 East Clark St.
Vermillion, SD 57069-2307
United States

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