Antitrust and Equal Liberty
35 Pages Posted: 27 Jan 2022 Last revised: 22 Mar 2022
Date Written: January 23, 2022
The terms of antitrust statutes – monopoly, competition, unfair methods of competition, conspiracy in restraint of trade – are inherently vague and not self-defining. The legislative histories of the Sherman, Clayton, Federal Trade Commission and Celler-Kefauver Acts are riddled with conflicting statements of purpose. They are meant to foster competition, to shelter small business, to keep prices low, to keep prices fair, to allocate resources efficiently, to equalize economic opportunity; to fortify against fascism, to protect political equality, to decentralize decision-making. Given such indefinite marching orders, courts struggle to apply something like a rule of law in complex balancing tests that often yield inconsistent results. The law and economics movement in antitrust, commonly associated with Robert Bork, perhaps gained purchase precisely because its focus on a calculable consumer welfare standard promised a neutral, scientific clarity in lieu of political and politicized balancing tests. More recently, “neobrandeisians,” seeking to bring antitrust back to its populist roots, emphasize the role it might play in balancing economic power. Lina Khan, Chairperson of the Federal Trade Commission, challenges scholars and policymakers to find a new philosophy to guide antitrust enforcement. She champions a philosophy that highlights the processes, powers, and structures of our economic life.
The ambiguity of antitrust law should not be lamented. It is an indelible feature of any law that helps diverse democratic citizens realize their equal liberty. Like rights to free speech and free religious exercise, antitrust cannot help but invite politicization precisely because politics often amounts to arguments about what our rights mean and how far their boundaries should run. Just as in any rights-talk, there will strident arguments and appeals to both rationality and authority. There will be haggling, compromise and temporary resolutions as citizens realize, as Kant did, that the state must constrain some rights so that it might protect others. There will be “big cases” that engage the public in an inquiry about what values rights should protect and what collateral damage they might do. Accordingly, when confronting antitrust, corporate leaders seek the freedom to arrange business affairs according to their own lights. Consumers object as they seek choice, variety, and protection from officious treatment. Employees and small business respond by demanding the strength and security afforded by coordinated “countervailing power.” Ours is a diverse country. It enjoys a complex economy riddled with powerful and capable organizations. Each of these organizations presents different risks and opportunities to our autonomy as citizens. The politics of antitrust, the ongoing discussion of rights in the marketplace, will therefore likely never end so long as there is a market in place.
Nevertheless, it is possible to lend more structure to the problem of conflicting rights by spelling out more precisely the rights claims at stake. As Bork correctly posited, “[a]ntitrust policy cannot be made rational until we are able to give a firm answer to one question: What is the point of the law – what are its goals? Everything else follows from the answer we give.” (Bork, 1978, 50) Once the contours of these claims are laid bare, it becomes easier to see whether and when, in Berlin’s colorful language, the freedom of the pike might become death for the minnows. It also becomes easier to map out legal and institutional changes that might better vindicate the promise of equal liberty. The first part of this paper will therefore identify the associational freedoms that can be claimed by business organization within a polity committed to equal liberty. It will also excavate the liberties that market competition is expected to both express and protect. These liberties, however, do not come without risk. In particular, the exercise of a corporation’s associational freedoms challenges the autonomy of rights of corporate insiders and outsiders alike. The second part of this paper will highlight these challenges. The third part of the paper will then demonstrate how antitrust law, if understood as a mechanism that helps balance equal liberty rights, can mitigate the dangers of corporate autonomy while also defending a system of private enterprise. The paper concludes by defending the relative merits of an equal liberty framework and gestures at an appropriate institutional solution.
Keywords: antitrust, equal liberty, rights, corporate rights, inequality, legal theory
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