Market Talk: Competition Policy in America

24 Pages Posted: 3 Apr 2008

See all articles by Spencer Weber Waller

Spencer Weber Waller

Loyola University Chicago School of Law

Date Written: 1997


A dreary debate has occupied the antitrust community over the past 30 years. The debate is a more elegant, scholarly version of the commercials for Miller Lite beer that ran during much of the same period. In the beer commercials, one group of modestly recognizable celebrities and personalities of the day shouted "Tastes great" while the opposing group shouted "Less filling."

The antitrust equivalent of this debate involves distinguished academics and policymakers arguing whether antitrust law and policy should be "more efficient" or should incorporate "greater fairness." Both schools of thought have enjoyed their periods of supremacy. The more economically oriented efficiency camp, normally dubbed "The Chicago School," had reigned supreme since the mid-1970's as its narrower version of antitrust policy has been adopted by the Supreme Court, has been relied upon by the Reagan and Bush administrations, and has persuaded the majority of commentators.

The sterile nature of the resulting discourse makes a book like Rudolph Peritz's Competition Policy in America, 1888-1992: History, Rhetoric, Law particularly welcome. Peritz is not interested in rehashing the existing debates over the original intent of the antitrust laws or their proper interpretation. Instead, he explores antitrust law and policy using the insights of postmodernism and the teachings of Michael Foucault to analyze the history, rhetoric, and legal doctrine of the first century of antitrust. He further analyzes antitrust law not as a narrow specialty field but as a body of competition policy including labor, corporate, and commercial free speech law.

In this review essay, I seek to analyze Peritz's vision for antitrust law and an American competition policy. In the first section, I discuss why antitrust history and rhetoric lends itself so effectively to a postmodern approach and Peritz's overall success at this endeavor. Part II looks at one of the vexing questions underlying any attempt to delineate an integrated competition policy that includes commercial free speech: namely, whether the marketplace for ideas is really a marketplace at all. Part III goes beyond Peritz's work to suggest that a vision of a competition policy embracing more that just antitrust doctrine is appropriate for international, as well as domestic, markets. Finally, I offer my personal speculations on the impact of Peritz's postmodernism on the ongoing debates in antitrust law.

Keywords: Rudolph Peritz, competition policy, antitrust law, postmodernism, discourse, European Union, marketplace of ideas, competition, competitiveness

JEL Classification: B10, B20, K21, K31, L10, L11, L12, L13, L40, L41, L42, L43

Suggested Citation

Waller, Spencer Weber, Market Talk: Competition Policy in America (1997). Law of Social Inquiry, Vol. 22, No. 2, 1997, Available at SSRN:

Spencer Weber Waller (Contact Author)

Loyola University Chicago School of Law ( email )

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