Consumer Welfare & the Rule of Law: The Case Against the New Populist Antitrust Movement

56 Pages Posted: 2 Jun 2020

See all articles by Elyse Dorsey

Elyse Dorsey

Government of the United States of America - Department of Justice

Geoffrey A. Manne

International Center for Law & Economics (ICLE)

Jan Rybnicek

Freshfields Bruckhaus Deringer LLP

Kristian Stout

International Center for Law & Economics (ICLE)

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Date Written: May 1, 2020

Abstract

Populist antitrust notions suddenly are fashionable again. At their core is the view that antitrust law is responsible for a myriad of purported socio-political problems plaguing society today, including but not limited to rising income inequality, declining wages, and increasing economic and political concentration. Seizing on Americans’ fears about changes to the modern US economy, proponents of populist antitrust policies assert the need to fundamentally reshape how we apply our nation’s competition laws in order to implement a variety of prescriptions necessary to remedy these perceived social ills. The proposals are varied and expansive but have the unifying theme of returning antitrust to the “big-is-bad” enforcement era prevalent in the first half of the twentieth century.

But the criticisms populist antitrust proponents raise are generally unsupported and often dramatized, and the resulting policy proposals are, accordingly, fatally flawed. There is sparse evidence today suggesting that the underlying trends these critics purportedly identify are real or in any way linked to lax antitrust enforcement. Ironically, populist antitrust proponents ignore that antitrust law debated over 50 years ago the same proposals that they are raising anew today. At that time, leading jurists, economists, enforcers, and practitioners from across the political spectrum rejected the use of liability standards that seek to evaluate a variety of vague and often contradictory socio-political goals or that condemn conduct based simply on the size of a company. They recognized that these tests led to incoherent and paradoxical results that often did more to hinder than to promote competition by undermining the rule of law and fostering corporate welfare. Instead, antitrust evolved the elegant “consumer welfare standard” that simplified the core issue of what constitutes harm to competition into a straightforward question: does the conduct at issue harm consumers?

Today, the consumer welfare standard offers a rigorous, objective, and evidence-based framework for antitrust analysis. It leverages developments in modern economics more reliably to predict when conduct is likely to harm consumers as a result of harm to competition. It offers a tractable test that is broad enough to contemplate a variety of evidence related to consumer welfare but also sufficiently objective and clear to cabin discretion and honor the principle of the rule of law. Perhaps most significantly, it is inherently an economic approach to antitrust that benefits from new economic learning and is capable of evaluating an evolving set of commercial practices and business models. These virtues are precisely the target of the new populist antitrust movement, which seeks to reject economics in favor of mere supposition.

This Article makes the case in support of the current consumer welfare standard and against a sweeping set of unsupported populist antitrust reforms. There is significant room for debate within the consumer welfare model for what types of conduct should face antitrust scrutiny, what evidence is relevant, and where liability standards should be drawn. Such debate is healthy and to the benefit of antitrust enforcement. But it does not require abandoning decades of experience and economic learning that would turn back the hands of time and return us to an era where antitrust enforcement was incoherent and deleterious.

Keywords: Antitrust Populism, Mergers, Vertical Integration, Economic Analysis

Suggested Citation

Dorsey, Elyse and Manne, Geoffrey and Rybnicek, Jan and Stout, Kristian and Wright, Joshua D., Consumer Welfare & the Rule of Law: The Case Against the New Populist Antitrust Movement (May 1, 2020). Pepperdine Law Review, Vol. 47, No. 861, 2020, Available at SSRN: https://ssrn.com/abstract=3592974

Elyse Dorsey

Government of the United States of America - Department of Justice ( email )

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
United States

Geoffrey Manne (Contact Author)

International Center for Law & Economics (ICLE) ( email )

2117 NE Oregon St.
Suite 501
Portland, OR 97232
United States
503-770-0076 (Phone)

HOME PAGE: http://www.laweconcenter.org

Jan Rybnicek

Freshfields Bruckhaus Deringer LLP

700 13th St NW
Floor 10
Washington, DC 20005
United States

Kristian Stout

International Center for Law & Economics (ICLE) ( email )

2117 NE Oregon St.
Ste 501
Portland, OR Oregon 97232
United States
5037700076 (Phone)
5037700076 (Fax)

HOME PAGE: http://www.laweconcenter.org

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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