The Ideological Roots of America's Market Power Problem
127 Yale L.J. F. 960 (2018)
20 Pages Posted: 8 May 2019
Date Written: June 1, 2018
Given the systemic market power problem we face today, identifying ways to restore antitrust enforcement is vital. Doing so first requires recognizing that the source of the problem is not just a lack of enforcement, but also the current philosophy of antitrust. The existing approach is premised on a theory of market power that proves deeply hostile to enforcement. Restoring a theory of power that accords with the original values of antitrust — including a distrust of concentrated private power — is critical for reviving an enforcement regime that can fully address the concentrated market power across our political economy. This would require refocusing antitrust analysis on a structural inquiry about process and power, rather than on a set of metrics focused on a narrow set of outcomes. While the “Unlocking Antitrust Enforcement” Collection offers some useful suggestions for how to strengthen enforcement, the authors neglect to grapple with the current framework, ratifying an orientation and set of assumptions that ultimately undermine their project.
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