Do Antitrust Disruptors Make Good Reformers?

32 Pages Posted: 3 Nov 2022 Last revised: 7 Mar 2023

Date Written: March 1, 2023

Abstract

Antitrust law is in the early phase of a badly needed correction. The prior correction—commonly known as the Chicago Revolution—established policy distortions and a need for a “Post-Chicago Era.” The present correction is likely to follow the same path. The reason is straightforward. Historically, effective antitrust reform messengers have not been pragmatic policy wonks. They have been populists driven by zeal and political cynicism, and some of their policy prescriptions have been flawed. As a result, antitrust law has evolved through a tension between the ability to generate political energy for antitrust reforms and the capacity to develop sound enforcement policies. Reform messengers depict this tension as a façade created by failed technocrats seeking to preserve their power. While this assertion has some truth, it does not imply that populist policy prescriptions are sound. Society—and specifically consumers—pay the price for misguided antitrust policies.

This Article explores two categories of misconceptions that present proposals for antitrust reform present: (1) the rejection of economics in favor of fairness and (2) a populist bipartisan coalition. The antitrust fairness ideal rests on the belief that society should sacrifice low prices, convenience, and efficiency to foster competition. In other words, society should arguably sacrifice the key benefits of competition to protect competition. The bipartisan populist coalition, in turn, rests on a shared instinct that the “enemy of my enemy is my friend.” Today, both progressive and Republican populists treat big businesses and corporate executives as enemies of the people but focus on strikingly different sets of grievances. Progressive populists have in mind a peaceful and fair marketplace where small businesses, farmers, workers, and entrepreneurs prosper collaboratively. In contrast, Republican populists hope to block what they consider anti-conservative biases of liberal-leaning corporate boards. The alleged biases refer to Corporate America’s condemnation of the nativism, denialism, bigotry, and authoritarian tendencies that the Republican Party represents today. It is far from clear that a bipartisan coalition of this kind is likely to protect competition or advance progressive values. However, the willingness of aspiring antitrust reformers to partner with lawmakers who are openly committed to antidemocratic norms sheds light on the qualities of the bipartisan initiatives.

Keywords: antitrust, big business, ESG, fairness, capitalism, big tech

Suggested Citation

Orbach, Barak, Do Antitrust Disruptors Make Good Reformers? (March 1, 2023). Arizona Legal Studies Discussion Paper No. 22-20, Berkeley Business Law Journal, Vol. 20, No. 1, 2023, Available at SSRN: https://ssrn.com/abstract=4266241 or http://dx.doi.org/10.2139/ssrn.4266241

Barak Orbach (Contact Author)

University of Arizona ( email )

1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)

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