The Present New Antitrust Era

By Orbach, Barak | William and Mary Law Review, March 2019 | Go to article overview

The Present New Antitrust Era


Orbach, Barak, William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                  1441 I. PAST ANTITRUST ERAS                        1444   A. The Formative Era, 1890-1911             1444   B. The First Rule of Reason Era, 1911-1935  1448   C. The Fairness Era, 1935-1975              1450   D. The Second Rule of Reason Era, 1975-?    1454 II. THE PRESENT ERA                           1458 CONCLUSION: THE VIRTUES OF MODERATION         1462 

INTRODUCTION

Three conflicting visions have shaped the evolution of antitrust law--fairness, laissez faire, and technocracy. (1) I examine the evolution of antitrust law through the changes in the popularity and influence of these visions over the years. I argue that a new antitrust era with distinctive characteristics has been forming in recent years.

The fairness vision builds on a collection of ideas that condemn business size and portray profit-seeking commercial activities as a source of undesirable distributive effects. (2) Louis Brandeis's essays about trusts and combinations epitomize this line of thinking. (3) Donald Turner famously described the fairness attitude as "in-hospitability in the tradition of antitrust law." (4)

The laissez-faire vision recognizes that, in theory, restraints of trade may harm competition, but emphasizes the potential costs of antitrust enforcement and skepticism of the plausibility and viability of anticompetitive restraints. (5) Frank Easterbrook's influential formulation of antitrust's false positives typifies this line of thinking. (6) Easterbrook hypothesized that, in antitrust, "judicial errors that tolerate baleful practices are self-correcting, while erroneous condemnations are not." (7) The Supreme Court adopted this conjecture as a guiding principle for antitrust law. (8)

The technocracy vision provides that the exercise of government functions by experts insulates policies from ideological influences and populist sentiments, such as fairness and laissez-faire fads. (9) Antitrust technocracy rests on two beliefs. First, "antitrust law has had and still has some undesirable features that the courts or Congress should correct." (10) Second, the "proper approach [for] government enforcement agencies [is] not to bring cases solely on the basis that they would be upheld because of past precedents." (11) Rather, the government should bring cases because "they should be upheld," including "for the purpose of persuading the Supreme Court to reverse precedents." (12) Beliefs that antitrust expertise reached some plateau protected by a broad consensus among experts have resurfaced several times since the enactment of the Sherman Act. These beliefs have always been somewhat aspirational and much exaggerated. A technocracy hype during the 1920s and 1930s inspired the idea of antitrust technocracy. (13) Then, antitrust technocracy struggled with incoherent and conflicting policies. (14)

In 1964, when the fairness vision dominated antitrust law, Richard Hofstadter argued that with the "growing public acceptance of the large corporation," antitrust had "lost its role in our society" and became "the almost exclusive concern of a technical elite of lawyers and economists." (15) Similarly, in 1979, as the laissez-faire vision was ascending, Richard Posner claimed that "a shift from disagreement over basic premises, methodology, and ideology toward technical disagreements" built a "growing consensus" among antitrust experts. (16) In the past two decades, however, many antitrust experts argued that the decline of the Chicago School in the 1990s allowed professional technocracy to replace antitrust ideology, contributing to nuanced and balanced antitrust enforcement. (17) Nonetheless, the present technocracy has been facing an ideological jurisprudence that has persistently narrowed the substantive scope of antitrust law. (18) Since the Great Recession, antitrust enforcement has been facing growing criticism for its permissible standards and neglect of the rising concentration in the economy. …

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