Business Judgment v. Antitrust Justice--The Forgotten Private Plaintiff
Stephen D. Susman
Concern over our ability to compete in the world economy and a belief that bigness is necessary to compete have become the backdrop to every debate over the scope of the antitrust laws. We must, however, acknowledge the damage that has already been done to the antitrust laws in the name of efficiency and world competition. We have sold the soul of competition to the devil, no question about that. As for the devil, there are several to choose from: The Chicago School, certain opinions of the Supreme Court, and the Reagan Administration's antitrust policies are chief among them. Even to those of us who have never sinned, heaven seems a long way away in today's antitrust climate.
This commentary begins with a discussion of the changes the Supreme Court has already made in the interpretation of the antitrust laws and then argues that further erosion of antitrust protection is unwarranted. These changes have resulted in part from a belief that our economic position in the world economy will be improved if only we water down the antitrust laws. Antitrust doctrine is changing because of such new assumptions, perhaps better described as prejudices, about bigness, efficiency, and world competition, which have made the courts, including the Supreme Court, receptive to conservative economic thinking. The Court is becoming more concerned about protecting the freedom of large corporations to implement their economic decisions than with the core antitrust concerns of consumer welfare and avoiding the concentration of economic and political power.
Taking Cases from the Jury And Giving Them to the Chicago School: The Damage Done in Recent Supreme Court Cases
To those of us who practice in the trenches, the changes in recent years