Revitalizing Antitrust in Its Second Century: Essays on Legal, Economic, and Political Policy

By Harry First; Eleanor M. Fox et al. | Go to book overview

Chapter 1
Retrospective and Prospective: Where Are We Coming From? Where Are We Going?

Eleanor M. Fox and Lawrence A. Sullivan

As antitrust completes its first century, we take stock. What are the origins of the law? Where is it now, and where is it going? What pressing questions will antitrust address in its second century? Will it be equal to the task?

Antitrust, like other aspects of economic law, has always been influenced by cohesive as well as ad hoc economic and political theories. Views have varied, changed, and developed over time, infusing antitrust with tension. It is out of such tension that traditional antitrust law has developed, enriched by insights of both its critics and supporters. This developmental process has not been one of sharp swings from one extreme view to another; rather, it has involved case-by-case adaptation to new or ascendant insights and to new forms and pressures of competition. As long as this mode of cautious change is maintained, antitrust will meet its second century equipped to deal with the problems that will confront it.

Antitrust law's persistent strength flows from two sources. First, its core values. Most courts that apply the antitrust laws have not forgotten what the body of law is about. Antitrust is rooted in a preference for pluralism, freedom of trade, access to markets, and freedom of choice. All of these values contribute to the law's summarizing norm--commitment to the maintenance of competitive process. 1 Second, the law grows not by deduction from any sweeping set of theoretical assumptions but by an inductive process that stays in touch with the changing business environment and with the particular facts out of which specific disputes arise. 2 The task of deciding antitrust cases involves an intricate mixture of fact and law. Intense fact-specificity anchors the law to reality, fosters evaluation, and checks disjunction based on rarified theories. As the nation enters antitrust's second century, the danger is not that the present law will be revealed as unsound or ungrounded, but that, in a complex and sometimes hostile environment, the law -- seduced by siren calls of theoretical

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