Antitrust Populism

25 Pages Posted: 29 Jun 2017 Last revised: 5 Mar 2018

Date Written: October 25, 2017

Abstract

In antitrust literature, “populism” is associated with sympathy for small local businesses and fears of large firms. In other areas and everyday language, “populism” means a confrontational approach that is used to attack institutions and influential elites. With the rise of populism in the United States and around the world, this Article questions the antitrust tradition of equating populism with ideas that shaped antitrust law a century ago. The tradition shields contemporary antitrust populists from the criticism and stigma that they deserve and, thus, empowers populist ideas that courts and scholars frequently endorse.

The Article makes three contributions to antitrust literature and the understanding of antitrust law. First, the Article clarifies the general characteristics of populism, contrasting the alleged cause of serving “the people” with the phenomenon’s costly dogmatic, anti-intellectual, and destructive methods. It then defines “antitrust populism” as an expression of the populist style in antitrust law and literature—the use of thin ideas, exaggerations, and anxieties to advance antitrust theories. Properly understood, certain forms of antitrust populism rely on dogmatic beliefs that reject nuanced policies and the need for analysis. Second, the Article identifies anti-bigness and anti-enforcement sentiments as the two primary populist strains in antitrust law and literature. Each strain is related to a populist political movement, guided by distrust in institutions, decorated with various theories, and critical of the other strain. Third, the Article explores the relationship between technological progress and antitrust populism. It explains why rapid technological change tends to inspire antitrust populists. The Article argues that courts, the agencies, and scholars should make an effort to reject populist arguments for their anti-intellectual nature and other flaws.

Keywords: antitrust, populism, Brandeis, Chicago School of Antitrust

Suggested Citation

Orbach, Barak, Antitrust Populism (October 25, 2017). 14 New York University Journal of Law & Business 1 (2017); Arizona Legal Studies Discussion Paper No. 17-14. Available at SSRN: https://ssrn.com/abstract=2994281

Barak Orbach (Contact Author)

University of Arizona ( email )

1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)
520.858.0025 (Fax)

HOME PAGE: http://www.orbach.org

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