The Chicago School and the Forgotten Political Dimension of Antitrust Law
I am very excited to announce that my new essay “The Chicago School and the Forgotten Political Dimension of Antitrust Law” has been published in the University of Chicago Law Review.
Here’s the abstract:
An economically oriented and technocratic view of antitrust has dominated the discipline’s practice and scholarship for the last four decades. Under this view, attributed in large part to the rise of the Chicago School, questions of legality ought to be decided exclusively on the basis of supposedly objective economic analysis, which does not admit any consideration or insight other than those that economists and other experts trained in the field can analyze. Lately, prominent voices from both the political left and right have begun attacking this mainstream view and calling for an enhanced role for antitrust law in mediating a variety of social, economic, and political issues.
This Essay discusses the political dimension of antitrust. It shows that antitrust law (and its common-law predecessors) was always concerned not only with narrowly defined economic aspects of competition, but also with the connection between market competition and a set of classic liberal political values. The common law’s aversion to monopoly, restraints of trade, and restraints on alienation, while involving economic considerations, were primarily concerned with constraining private actors’ ability to exercise power and limit the rights of others without a clear legal mandate to do so. It recognized that unchecked private economic power may be as injurious to individual freedom and other liberal values as unchecked political power and that the two may be mutually constitutive.
The passage of antitrust law starting in the late nineteenth century both reflected and rekindled interest in these political ideas, many of which continued to inform courts’ antitrust decisions until the rise of the Chicago School and its insistence that antitrust law could only be legitimately concerned with maximizing economic efficiency. But as I show in this Essay, that view not only departed from antitrust law’s historical roots and doctrinal development, but also presented a radical, unexplained, and unacknowledged shift from the views of some of the early founders of the Chicago School.
In addition to bringing to light the Chicago School’s shifting views on antitrust’s political dimension, this Essay also addresses the possibility of reintegrating this dimension. It discusses the legitimacy of integrating political considerations into existing law, the desirability of such integration, and the feasibility of integrating such considerations in a coherent, intelligible, and predictable fashion. It shows that such reintegration is legitimate, feasible, and may even be desirable.