The Ideological Origins and Evolution of U.S. Antitrust Law
William H. Page, ISSUES IN COMPETITION LAW AND POLICY, Vol. 1, No. 1, ABA Section of Antitrust Law, 2008
17 Pages Posted: 14 Apr 2005 Last revised: 22 Sep 2015
Two great, opposing ideologies of the market and the state have shaped the evolution of antitrust law in the United States since 1890. The evolutionary vision views the market, framed solely by common-law rules of property and contract, as a mechanism for facilitating free exchanges among countless individuals in the pursuit of their best interests;markets, in this vision, will destroymonopolywithout government intervention. The intentional vision views the market as a mechanism within which powerful interests can coerce consumers, labor, and small businesses; markets, in this vision, tend toward monopoly unless government intervenes. The Sherman Act embodied a legislative compromise between these two visions. It endorsed competition in markets as the fundamental mechanism for the allocation of resources, but it rejected the view that government can never improve market outcomes by direct intervention. Over the ensuing century and more, the underlying ideological tension in antitrust has continued to frame the debate over the interpretation of the Sherman Act. In the formative era of antitrust policy, the evolutionary vision had primary influence. In the period from the end of the New Deal through the Warren Court, the intentional vision was dominant, producing a multitude of new per se rules, an expansive definition of monopolization, and an aggressive merger policy. Beginning in the mid-1970s, however, another evolutionary approach, the Chicago School, began to influence law and policy. Still more recently, Post-Chicago analyses have emerged that express in formal economics some of the perceptions of the intentional vision.
Keywords: antitrust law, economics, ideology, history, legislative history, Sherman Act
JEL Classification: A13, B15, B25, K10, K21, L10
Suggested Citation: Suggested Citation