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

opinions and its warring schools of thought can best be understood as a struggle between those who emphasize antitrust's role in protecting the consumer and those who emphasize antitrust's role in protecting competition. Indeed, this conflict is perceptible in Stevens' Jefferson Parish opinion, in which he speaks of the effect of the alleged illegal tying arrangement on competition and on the very next page he wonders about the effect of the arrangement on consumers. 27

I do not think it is unreasonable to conclude that much the same thing has been true in the intellectual history of the law of illegal monopolization. That is to say, when we emphasize the effect of an alleged monopolist's conduct on consumers, we are placing efficiency as the paramount value, and when we talk about the effect of the challenged conduct on competition, we are emphasizing what some call the political ingredient in antitrust: the fear that excessive, though efficient, economic power will lead to political domination. 28

Thurman Arnold used to say that although he had begun on a note of despair, he would end on a note of hope. I end on both notes. The authors of the economic analyses in this volume take a narrow view of the Sherman Act. They see only a modest role for antitrust and only a small window for Section 2's condemnation of monopolization. I should have thought, as we reached the one-hundredth anniversary of the Sherman Act, that all would agree that its second section has more than a modest role to play in America's "charter of freedom" for business. It is, I submit, cause for despair that even scholars who resist the Chicago School feel it necessary to downgrade Section 2 to a modest role.

As for my note of hope, I close by paraphrasing Alfred Lord Tennyson: 29 "The old order changeth, yielding to the new, and the Sherman Act continues to fulfill itself in many ways."


N0TES
1.
See Standard Oil Co. of NJ. v. United States, 221 U.S. 1, 58 ( 1911).
2.
Id.
3.
Id. at 61.
4.
Id.
5.
United States v. American Tobacco Co., 221 U.S. 106 ( 1911).
6.
United States v. United Shoe Mach. Co., 247 U.S. 32 ( 1918).
7.
United States v. United States Steel Corp., 251 U.S. 417 ( 1920)
8.
See United States v. General Dynamics Corp., U.S. 486, 527 ( 1974) ( Douglas, J., dissenting); United States v. Marine Bancorp., 418 U.S. 602, 653 ( 1974) ( White, J., dissenting); cf. United States v. Von's Grocery Co., 384 U.S. 270, 301 ( 1966) ( Stewart, J., dissenting).

-257-

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