Reconsidering Antitrust's Goals
Boston College Law Review, Vol. 53, p. 551, 2012
University of Tennessee Legal Studies Research Paper No. 163
81 Pages Posted: 4 Aug 2011 Last revised: 25 Mar 2012
Date Written: August 3, 2011
Abstract
Antitrust policy today is an anomaly. On the one hand, antitrust is thriving internationally. On the other hand, antitrust’s influence has diminished domestically. Over the past thirty years, there have been fewer antitrust investigations and private actions. Today the Supreme Court complains about antitrust suits, and places greater faith in the antitrust function being subsumed in a regulatory framework. So what happened to the antitrust movement in the United States?
Two import factors contributed to antitrust policy’s domestic decline. The first is salience, especially the salience of the U.S. antitrust goals. In the past thirty years, enforcers and courts abandoned antitrust’s political, social, and moral goals, in their quest for a single economic goal. Second antitrust policy increasingly relied on an incomplete, distorted conception of competition. Adopting the Chicago School’s simplifying assumptions of self-correcting markets composed of rational, self-interested market participants, the courts and enforcers sacrificed important political, social, and moral values to promote certain economic beliefs.
With the anger over taxpayer bailouts for firms deemed too-big-and-integral-to-fail, the wealth inequality that accelerated over the past thirty years, and the current budget cuts and austerity measures, the United States is ripe for a new antitrust policy cycle.
This Article first summarizes the quest during the past 30 years for a single economic goal. It discusses why this quest failed. Four oft-cited economic goals (ensuring an effective competitive process, promoting consumer welfare, maximizing efficiency, and ensuring economic freedom) never unified antitrust analysis. After discussing why it is unrealistic to believe that a single well-defined antitrust objective exists, the Article proposes how to account antitrust’s multiple policy objectives into the legal framework. It outlines a blended goal approach, and the benefits of this approach in providing better legal standards and reviving antitrust’s relevance.
Keywords: Sherman Act, Clayton Act, Antitrust, Behavioral Economics, Well Being, Monopoly, Too-Big-To-Fail, Mergers
JEL Classification: K21, L40, L41, L42, L43, L44
Suggested Citation: Suggested Citation
Do you have a job opening that you would like to promote on SSRN?
Recommended Papers
-
Reexamining the Legacy of Dual Regulation: Reforming Dual Merger Review by the DOJ and the FCC
By Phil Weiser
-
The Many Faces of Administrative Adjudication in the European Union
-
Some Realism About Legal Certainty in the Globalization of the Rule of Law
-
Merger Control and the Rule of Law
By R.a.a. Khan and Gareth T. Davies
-
Merger Control and the Rule of Law
By R.a.a. Khan and Gareth T. Davies
-
When the Going Gets Tight: Institutional Solutions When Antitrust Enforcement Resources are Scarce
By Michal Gal