Week 4 dives into a second key tool in the anti-monopoly and regulated industries toolkit: antitrust. Several of the readings discuss the origins and inadequacies of the predominant approach to antitrust law today—a court-centered regime driven by a focus on consumer welfare. Reviewing Tim Wu’s The Curse of Bigness, Lina Khan charts the “decades-long project to defang antitrust.” This intellectual movement, Professor Khan describes, transformed antitrust from a pro-democracy, anti-monopoly tool to check private power into a series of doctrines that have permitted growing economic concentration in service of a narrow conception of consumer welfare. Christopher Leslie and Sandeep Vaheesan both critically examine central ideas behind this Chicago School turn in antitrust law, offering logical, historical, economic, and legal critiques. Similarly, Sanjukta Paul challenges antitrust law’s permissiveness toward top-down forms of economic coordination and declares it inconsistent with both the intent of the antitrust laws and with the Chicago School’s own justifications.
Based on these critiques, the readings also propose alternatives to the narrow Chicago School-inspired paradigm. Articles by Robert Pitovsky and Louis B. Schwartz discuss the extent to which “political” considerations such as concentrated economic power, protection of small businesses, income redistribution, and other considerations of “justice” can and should play a role in antitrust enforcement. Harry First and Spencer Weber Waller challenge the technocratic, economist-dominated turn in antitrust and argue for a less technocratic, more democratic antitrust regime. Both they and Professor Paul call for greater reliance on administrative agencies, rather than courts, to craft antitrust policy. In addition, Professor Paul looks to the Sherman Act’s legislative history to argue for an antitrust standard that disfavors forms of top-down domination and favors horizontal coordination among small economic actors.
Together, these readings demonstrate the need in antitrust law for the broader paradigm shift that LPE scholars have advocated: a focus on questions of power rather than efficiency, equality rather than neutrality, and democracy rather than antipolitics.