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

NOTES
1.
Almost three-quarters of a century ago, John Bates Clark described the meaning of free competition and the guidelines needed for its preservation.

In our worship of the survival of the fit under free natural selection we are sometimes in danger of forgetting that the conditions of the struggle fix the kind of fitness that shall come out of it; that survival in the prize ring means fitness for pugilism, not for bricklaying nor philanthropy; that survival in predatory competition is likely to mean something else than fitness for good and efficient production; and that only from a strife with the right kind of rules can the right kind of fitness emerge. Competition and its purpose are not individual but social. It is a game played under rules fixed by the state to the end that, so far as possible, the prize of victory shall be earned, not by trickery or mere self- seeking adroitness, but by value rendered. It is not the mere play of unrestrained self-interest; it is a method of harnessing the wild beast of self-interest to serve the common good -- a thing of ideals and not of sordidness. It is not a natural state, but like any other form of liberty, it is a social achievement, and eternal vigilance is the price of it.

J. Clark, The Control of Trusts 200-01 ( 1914). For a recent cogent analysis of free competition, see Fox, The Politics of Law and Economics in Judicial Decision Making: Antitrust as a Window, 61 N.Y.U. L. Rev.554 ( 1986).

2.
Justice William O. Douglas best stated the philosophic rationale underlying the antitrust laws in his dissent in United States v. Columbia Steel Co., 334 U.S. 495, 534 ( 1948).

Size . . . should . . . be jealously watched. In final analysis, size is the measure of the power of a handful of men over our economy. That power can be utilized with lightning speed. It can be benign or it can be dangerous. The philosophy of the Sherman Act is that it should not exist. For all power tends to develop into a government in itself. Power that controls the economy should be in the hands of elected representatives of the people, not in the hands of an industrial oligarchy. Industrial power should be decentralized. It should be scattered into many hands so that the fortunes of the people will not be dependent on the whim or caprice, the political prejudices, the emotional stability of a few self-appointed men. The fact that they are not vicious men but respectable and social-minded is irrelevant. That is the philosophy and the command of the Sherman Act.

Id. at 536 (footnote omitted). As Lawrence Sullivan reminds us, "Competitively structured markets have their own economic, social, and political value," including the impersonality of forces impinging on economic decision making, the dispersal of economic power, and a more equitable distribution of income. Sullivan, Monopolization: Corporate Strategy, the IBM Cases, and the Transformation of the Law, 60 Tex. L. Rev.587, 630 ( 1982).

3.
See, e.g., R. Bork, The Antitrust Paradox ( 1978); R. Posner, Antitrust Law ( 1976).
4.
See, e.g., Thurow, Let's Abolish the Antitrust Laws, N.Y. Times, Oct. 19, 1980, § 3, at 2.
5.
15 U.S.C. § 1 ( 1982).
6.
Id. § 18 ( 1982 & Supp. II 1984).
7.
See Adams & Brock, The "New Learning" and the Euthanasia of Antitrust, 74 Calif. L. Rev. 1515, 1519 ( 1986).
8.
See D. Ravenscraft & F. M. Scherer, Mergers, Sell-offs, and Economic Efficiency

-156-

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