A Theory for All and None: A Neo-schumpeterian Model of Antitrust Law and Political Economy

Abstract

The neoliberal moment has passed. With respect to antitrust policy, critics on both the left and increasingly the right are targeting large corporations and antitrust law's consumer welfare standard as a-if not the-major cause of society's ills. The primary contenders to the modern consumer welfare theory of antitrust law and its underlying neoliberal model of political economy are a vanguard of liberal reformers, an ever more antitrust-conscious group of national conservatives and the neo-Brandeisians, with the latter representative of a broader Law and Political Economy movement aimed at constructing a radical and progressive post-neoliberal paradigm of political economy. This debate on political economy is itself a microcosm of a larger dispute about the meaning and future of the American experiment: while the liberal reformers cling to a vision of social democracy and the national conservatives wander down the road to Leviathan if not serfdom, the neo-Brandeisian plan to deconstruct corporate America seems but the first step in a subtle Marxist program. In reimaging antitrust law and political economy to succeed neoliberalism, an alternative Schumpeterian system of order and liberty rooted in the heroic entrepreneurial spirit and enriched by a more normative and realist understanding of markets and competition provides a workable framework for responding to the crisis of neoliberalism and driving creative destruction in the 21st Century.