Recovering the Moral Economy Foundations of the Sherman Act
81 Pages Posted: 15 Apr 2020 Last revised: 8 Nov 2021
Date Written: April 14, 2020
This paper deepens and seeks to provide a foundation for the current broadening in the antitrust debate and ultimately, in adjacent areas relating to market organization. As normative reconstruction, it is aimed both at current reform efforts and at the interpretation and implementation of the existing antitrust laws. The paper traces a thread beginning with the “moral economy” origins of antitrust and the common law of restraint of trade; continues through the American antimonopoly coalition’s distinctive and egalitarian moral economy vision; and culminates in a reinterpretation of the legislative history of the Sherman Act, both as to affirmative purpose and as to judicial role. I propose a core prescription: the command to disperse economic coordination rights. This core prescription in turn implies three key tasks: taking affirmative steps to contain domination, to accommodate and promote democratic coordination, and to set rules of fair competition.
The normative thread traced here, culminating in an argument about legislative purpose, is interwoven with an argument about institutional roles. The widely held conventional wisdom is that the Sherman Act is the paradigmatic “common-law statute,” entailing a delegation of lawmaking power by Congress to the courts that spans the field of antitrust. The common-law-statute thesis is more than just the proposition that the courts should guide the application of the law as circumstances change. Instead, it has been understood as an effective “blank check” to federal courts to generate the foundational normative criteria according to which the statutory framework will function. But the legislative history of the Sherman Act undermines both the argument for judicial supremacy and the particular prescriptions with which the most pronounced, current episode of judicial law-making has been associated. Finally, the paper briefly sketches first steps on an alternative path for implementing antitrust’s core prescription, emphasizing the potential role of the Federal Trade Commission in administering the moral economy.
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