51 Pages Posted: 2 Jun 2011 Last revised: 14 Dec 2015
Date Written: May 17, 2012
In 1882 Standard Oil’s General Solicitor invented the corporate trusts that inspired the birth of the anti-trust discipline. The public aversion to trusts in the United States gave the field its enduring and uniquely American name. As the discipline matured, distrust of bigness took root in cases and doctrines. Justices Louis Brandeis and William Douglas wrote the narrative into early case law and it remained embedded in the field even as economics became the antitrust methodology. Economics merely transformed the fear from a concern about absolute size to one of relative size (market shares). While size should be an irrelevant consideration in antitrust analysis, it still mistakenly serves as a driving force behind the law. This Article studies how the fear of bigness - of absolute or relative size - has shaped and confused analytical perceptions of antitrust, established and sustained no-fault monopolization theories and contributed to various doctrinal oddities. The American discipline might owe its birth to the fear of size, but this fear has been a burden and a curse on the development of sound antitrust policies.
Keywords: Too Big to Fail, business size, monopoly, market power, antitrust history
Suggested Citation: Suggested Citation
Orbach, Barak and Campbell Rebling, Grace E., The Antitrust Curse of Bigness (May 17, 2012). 85 Southern California Law Review 605 (2012); Arizona Legal Studies Discussion Paper No. 11-23. Available at SSRN: https://ssrn.com/abstract=1856553