Antitrust Without Romance

NYU Journal of Law & Liberty - 13 N.Y.U. J.L. & Liberty 326 (2020)

107 Pages Posted: 30 May 2019 Last revised: 4 May 2020

See all articles by Thibault Schrepel

Thibault Schrepel

Stanford University's Codex Center; Utrecht University School of Law; University Paris 1 Panthéon-Sorbonne; Sciences Po

Date Written: May 28, 2019

Abstract

Antitrust law is undergoing a transformation that is detrimental to the interest of the general public. “Romantics” are taking over antitrust law—a fact evinced by recent public outreach instruments. This transformation is grounded in populist rhetoric that pits the “elites” (often, the technological elite embodied by tech companies) against “the people,” and provides opportunities antitrust authorities’ top officials to benefit their own interests at the expense of the public. Presently, nothing is being done to unwind this downward spiral; we are stuck in a regime in which any action to correct market failures is automatically deemed beneficial, without ever considering the possibility of governmental failure.

Increasing romanization could critically jeopardize decades of jurisprudential construction, causing economic disruption, destabilization of the law, and blindness towards real anticompetitive practices on the part of antitrust authorities, consequently placing the rule of law at risk. To avoid these consequences, remedial measures are necessary. To this end, the present Article proposes several measures, intended to fill the institutional gaps in which the moralization of antitrust law is taking place. Overall, the effectiveness of antitrust authorities should be enhanced by applying reason to antitrust law rather than fears, feelings, or sentiments. The romance must be taken 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

Schrepel, Thibault, Antitrust Without Romance (May 28, 2019). NYU Journal of Law & Liberty - 13 N.Y.U. J.L. & Liberty 326 (2020), Available at SSRN: https://ssrn.com/abstract=3395001 or http://dx.doi.org/10.2139/ssrn.3395001

Thibault Schrepel (Contact Author)

Stanford University's Codex Center ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Utrecht University School of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

University Paris 1 Panthéon-Sorbonne ( email )

France

Sciences Po ( email )

27 rue Saint-Guillaume
Paris Cedex 07, 75337
France

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