Antitrust Law and Its Critics
83 Antitrust L.J., Forthcoming
22 Pages Posted: 7 Feb 2020
Date Written: January 14, 2020
Antitrust law is the subject of substantial current controversy, criticism, and proposed reform. The current unease seems to reflect the confluence of four factors: rising populism, on both the left and the right, that decries free markets, globalism, and increasing inequality within the developed countries; the rise of big tech, which seems to expand without limit through scale and scope economies and network effects; a growing body of economic studies that suggest that market concentration and market power have increased in recent years; and increasing concern of libertarians about private, as well as government, power coupled with evidence of increased industry concentration.
On the surface, there appears to be a conversation about the future of antitrust law between three groups; conservatives who argue that antitrust law is basically fine as it is, progressives who argue that antitrust enforcement has been too lax and that antitrust law should be adjusted but within the prevailing consumer welfare paradigm; and populist critics who have more far-reaching reform proposals. In fact, however, there are really two very separate conversations. One, between conservatives and progressives, concerns how antitrust law might best promote economic welfare. The other, pushed largely by the populists, concerns how to replace what is now known as antitrust law with alternatives that will serve other objectives, in addition to economic welfare, such as promoting an equitable distribution of wealth and of economic and political power. The two conversations seldom intersect in any meaningful way.
This paper analyzes the current controversies. It explains what the consumer welfare standard means, why proposals for abandoning or replacing it are unsound, and how the two conversations have not intersected. It ends by describing ways in which the various critics and defenders of antitrust law might fruitfully join in a single conversation that addresses both antitrust and regulatory issues.
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