Reactionary Antitrust

Abstract

Antitrust is undergoing a renaissance. New voices have emerged. Lively debate has prompted antitrust stakeholders to re-evaluate familiar concepts. Issues long considered settled have been opened for re-examination. Some have welcomed this opportunity for self-reflection. But it has also been met with hypocritical charges of politicization and populism, fallacious criticisms, and a refusal to engage with the actual core arguments of the new progressives.

These new critics have famously been labeled as “Hipster Antitrust.” What has been lacking thus far is an equivalent label for the anti-progressive attack on their work. Borrowing from a recent article by Professor Herbert Hovenkamp, this essay proposes “Reactionary Antitrust.” Reactionary Antitrust is a grouping of flawed arguments more likely to discourage, rather than encourage, debate and dialogue. These include disparagement of progressives as “political” and “populist,” the imposition of impossible burdens of proof on would-be reformers, and erecting straw-man versions of opponents’ actual positions. This essay urges an end to Reactionary Antitrust. Instead of seeking to bury the critical reform movement, antitrust discourse should welcome new voices and the renewed intellectual ferment they have inspired.

Given the tone of the current antitrust debates, additional framing may be warranted at the outset. Antitrust commentary has a long and troublesome history of attempting to associate particular individuals with one camp or another, instead of engaging with those individuals’ actual positions. This essay is emphatically not a critique of entire articles or schools of thought, and certainly not of particular authors. Instead, it identifies and responds directly to particular arguments and modes of argument. In other words, the essay strives to model that which it calls for: a return to the highest and best form of scholarly enterprise.