25 Pages Posted: 28 Jan 2013 Last revised: 2 Apr 2013
Date Written: March 1, 2013
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.
Keywords: antitrust, competition law, goals, consumer welfare, Robert Bork, competition
Suggested Citation: 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: https://ssrn.com/abstract=2207250
By Robert Lande
By Wouter Wils