Economic Law and Economic Growth: Antitrust, Regulation, and the American Growth System

By George E. Garvey; Gerald J. Garvey | Go to book overview

and in contradistinction to the encouragement of growth in administratively favored public utilities, whose declining rates had sometimes been used to draw resources into projects of expansion despite the existence of increasing real costs within the regulated sector.

From the late 1970s onward, movement toward marginal pricing through the actual freeing up of competitive market forces, rather than merely through improved regulatory procedures, also found expression in a wave of deregulatory laws.30 During the same period, contestability theory flourished, albeit less as a formal doctrine of administrative law than as a legitimizing influence for those who wanted intellectual justification in the enterprise of loosening the regulatory reins.31

Perhaps the most significant of the neoclassicists' achievements were those of Bork, Posner, Baxter & Co., who made antitrust not only safe for industrial bigness, but positively congenial to it.

Doctrinally, however, the triumph of neoclassicism left U.S. public law in an uncertain state. It was an ironic outcome, given the intent of so many of its proponents to clarify and simplify economic law. During the period of the neoclassical ascendancy, the thrust of judicial interpretation and administrative rule making was clearly counter to that of neopopulism. Nevertheless, few of the old precedents were overruled outright.32 The old continued to coexist with the new. As the nation prepared to enter the 1990s, the whole apparatus was unstably positioned to careen off in either direction for the future.

Moreover, the identification of regulatory reform mainly with high-powered economists, and of antitrust revisionism with a claque of lawyers, intensified the appearance of hermetically separated spheres of administrative and antitrust law. An integrated approach to national economic policy, based on one coherent body of economic law, seemed farther away at the end of the 1980s than it had been even at the beginning.

Ultimately, an assessment of what the neoclassicists wrought will have to depend on the extent to which freed-up markets, deregulated industries, and the Chicago version of welfare maximization support the American growth system. Thus a weighing of the benefits of neoclassicism--or, for that matter, of a return to neopopulism--should be attempted only with a view to a third approach, a developmental approach that puts growth rather than competitive pricing or a Jeffersonian social aesthetic at the center of U.S. industrial policymaking. The point of Chapter 6 is to begin the opening of contemporary economic law to such a broader view.


NOTES
1.
See Robert Bork, The Antitrust Paradox: A Policy at War with Itself ( New York: Basic Books, 1978); Richard A. Posner, Economic Analysis of Law, 3d ed. ( Boston: Little, Brown, 1986); and Posner, Antitrust Law: An Economic Perspective ( Chicago: University of Chicago Press, 1978), part. chap. 9 and pp. 237-55.

-116-

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Economic Law and Economic Growth: Antitrust, Regulation, and the American Growth System
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Figures and Tables ix
  • Preface xi
  • Acknowledgments xv
  • Introduction ANTITRUST, REGULATION, AND THE AMERICAN GROWTH SYSTEM 1
  • Notes 7
  • 1- Antebellum America: Emergence of the Growth System 13
  • Notes 26
  • 2- The Context and Functions of Modern Economic Law 33
  • Notes 52
  • 3- Neopopulism and the Image of the Atomized Market 59
  • Notes 73
  • 4- Neoclassical Price Theory and Rate Regulation 81
  • Notes 99
  • 5- The Chicago School, Antitrust, and Consumer Surplus 103
  • Notes 116
  • 6- Antitrust, Regulation, and the Field of Policy Choice 121
  • Notes 137
  • Epilogue ECONOMIC LAW, INDUSTRIAL POLICY, AND ECONOMIC GROWTH 145
  • Notes 152
  • SELECTED BIBLIOGRAPHY 157
  • Index 165
  • About the Authors 169
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