Free Market State (Of Mind): Antitrust Federalism, John J. Flynn and the Utah Constitution’s Free Market Clause

57 Pages Posted: 29 Jul 2022 Last revised: 22 Feb 2023

See all articles by Jorge L. Contreras

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

Date Written: July 25, 2022

Abstract

The Utah Constitution states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people.” Utah’s so-called Free Market Clause, adopted in 1992, is unique among the constitutions of the fifty states. Through an excavation of the historical record and contemporary literature, this article shows that the Free Market Clause owes its existence to the influence of Professor John J. Flynn of the University of Utah, whose pioneering work on antitrust federalism was rooted in Rawlsian notions of distributive justice and economic equality. One of the early critics of the Chicago School’s output-based economic approach to antitrust analysis, Flynn actively sought to infuse antitrust regulation, primarily at the state level, with notions of wealth inequality, distributive justice and individual liberty. Yet in recent years conservative groups have taken up the Free Market Clause as a potential deterrent to progressive regulation. And in the three decades since it was enacted, the courts of Utah have all but forgotten the origin and purpose of this unique and empowering constitutional pronouncement, finding it to be non-self-executing and thereby non-judiciable. This Article, for the first time, unearths the forgotten intellectual history of Utah’s Free Market Clause and explores its three principal applications: (1) an interpretive aid to Utah’s Antitrust Act, which was modeled on the federal Sherman Antitrust Act, (2) a standalone constitutional claim against anticompetitive state regulations and private conduct, and (3) an alternative approach to federal antitrust analysis that supplements neoclassical economics with concerns over wealth inequality, distributive justice and individual liberty.

Keywords: antitrust, free market, utah, self-execution, constitution, federalism

Suggested Citation

Contreras, Jorge L., Free Market State (Of Mind): Antitrust Federalism, John J. Flynn and the Utah Constitution’s Free Market Clause (July 25, 2022). 2023(2) Utah Law Review 279 (2023), University of Utah College of Law Research Paper No. 507, Available at SSRN: https://ssrn.com/abstract=4172338 or http://dx.doi.org/10.2139/ssrn.4172338

Jorge L. Contreras (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
124
Abstract Views
735
Rank
419,323
PlumX Metrics