Antitrust Without Romance
NYU Journal of Law & Liberty - 13 N.Y.U. J.L. & Liberty (Forthcoming, 2020)
70 Pages Posted: 30 May 2019 Last revised: 14 Sep 2019
Date Written: May 28, 2019
The romantics are taking over antitrust law. Building on populist rhetoric that pits the elites (often, the technological elite embodied by tech companies) against the people, they explain the need to sanction a minority who is presumably endangering the general interest. This approach creates an appeal for governmental action and gives room to antitrust authorities’ personnel to apply idealized solutions without ever questioning the possibility of governmental failures. It unties their hands and lets them pursue their own interests, whether it is to get votes, to be (re)elected, to be (re)appointed to key positions or to show themselves under a good political and moral angle.
In this article, we first assess the extent to which antitrust law public outreach instruments are being romanticized by top officials who are further pushed by part of the doctrine. We show that it results from institutional flaws which give room to individuals’ interests instead of containing them. We explain that these interests are maximized by way of demonizing the elites, thus reinforcing the opposition with the people and the need for antitrust authorities to moralize them. We then move on to explore the consequences of this moralization and show that it is driving antitrust authorities to become blind to specific issues and not to engage in the type of enforcement that would undermine their personnel’s interests. It also leads to the use of porous concepts such as “fairness” to moralize companies who must all together contribute to the making of a “better” world. In the end, one may have reasons to fear that the moralization of public discourses will soon reach the case law, thus jeopardizing decades of jurisprudence by taking antitrust away from the rule of law.
For that, the issue must be remedied. We propose several institutional and substantial reforms to this end, all based on public choice theory and aimed at ensuring that antitrust law benefits the highest number and not only a few. They entail refocusing antitrust authorities – here, the Federal Trade Commission, the Department of Justice's Antitrust Division and the European Commission – on the economic objective for which they are qualified as well as using quantifiable and amoral concepts. Human flourishing should be enhanced by applying reason to antitrust law; not fears, not feelings, not sentiments, not intuitions. It implies taking romance out of antitrust.
Keywords: Antitrust, Competition, Romance, Public Choice, Populism, Moralism, Market Failures, Government Failures
JEL Classification: K21, K20, K23, K29, D72, D73, D78, L40, L49, L50
Suggested Citation: Suggested Citation