Antitrust Agonistes

Abstract

Classical approaches to the law, even statutory law, teach that its purpose is to codify behavioral rules creating clear expectations about the consequences of human interactions. Stability and predictability are the rule of law’s hallmarks. The present essay explores those principles within the context of the origins and development of antitrust (competition) policy in the United States, with special attention to mergers and acquisitions. The old antitrust question was whether size alone offends the law. The burden of the argument is that the discretion granted to the law enforcement agencies and the courts in identifying and sanctioning impermissible accumulations of economic market power creates climates of uncertainty for the owners of private business enterprises, thereby undermining the rule of law. Moreover, if the laws have not been applied consistently in ordinary economic markets, enforcers can be expected to err even more frequently in responding to undesirable accumulations of political power or social influence in modern digital information markets.

Keywords: Rule of Law, Competition Policy, Sherman Act, Clayton Act, Public Choice

JEL Classification: D4, D7, H1, K21