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Antitrust

The End of Antitrust History Revisited

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Introduction

In April 2007 the Antitrust Modernization Commission reported to Congress that “the state of the U.S. antitrust laws” was “sound.”1×1. Antitrust Modernization Comm’n, Report and Recommendations i (2007). Created by lawmakers to examine whether antitrust laws should be revised, the bipartisan Commission concluded that existing statutes were sufficiently flexible to address emerging issues, and that courts, antitrust agencies, and practitioners were now in proper agreement that “consumer welfare” was the “unifying goal of antitrust law.”2×2. Id. at 35; see id. at 32. A decade later, the American Bar Association’s Antitrust Section delivered a similar assessment, remarking that “the Nation’s system of competition enforcement has been in good hands.”3×3. Am. Bar Ass’n, Section of Antitrust Law, Presidential Transition Report: The State of Antitrust Enforcement 2 (2017). These reports represented a high-water mark of agreement within the antitrust community that, despite ongoing debates about specific doctrinal tests or particular standards of proof, antitrust law was, altogether, on the right course. The fact that antitrust had shed its public appeal in favor of an expert-driven enterprise — becoming “less democratic and more technocratic”4×4. Daniel A. Crane, Technocracy and Antitrust, 86 Tex. L. Rev. 1159, 1160 (2008).  — was generally seen as further evidence of its success.5×5. See, e.g., Herbert Hovenkamp, Whatever Did Happen to the Antitrust Movement?, 94 Notre Dame L. Rev. 583, 585 (2018) (“Over the last fifty years antitrust has become much more technical, particularly in areas such as merger enforcement and exclusionary behavior, but also in more collateral areas such as assessing causation and measuring damages. As its technical competence has increased, its ‘movement’ quality has faded into the background or become political noise. Simultaneously, technical antitrust has become less interesting to politicians, who cannot win elections by talking about the Herfindahl-Hirschman Index or average variable cost.”). But cf. Harry First & Spencer Weber Waller, Antitrust’s Democracy Deficit, 81 Fordham L. Rev. 2543, 2544–46, 2572–74 (2013) (criticizing the shift of antitrust away from its democratic roots).

The Curse of Bigness: Antitrust in the New Gilded Age

By Tim Wu. New York, N.Y.: Columbia Global Reports. 2018. Pp. 154. $14.99.

Today, however, it is clear that what may have appeared as the end of antitrust history proved instead to be a prolonged pause in an enduring clash over the purpose and values of the U.S. antitrust laws.6×6. Cf. Francis Fukuyama, The End of History and the Last Man (1992) (declaring that the spread of economic and political liberalism marked a lasting and stable ideological end point). Not all antitrust scholars adopted this “end of history” view of the field. See, e.g., William E. Kovacic, Failed Expectations: The Troubled Past and Uncertain Future of the Sherman Act as a Tool for Deconcentration, 74 Iowa L. Rev. 1105, 1110 (1989) (predicting “that deconcentration will reemerge as a significant policy concern in antitrust’s second century”). Over the last few years, the relative stability of the antitrust consensus has yielded to a sharp rupture.7×7. Many, including myself, have participated in this contestation. See, e.g., Barry C. Lynn, Cornered: The New Monopoly Capitalism and the Economics of Destruction (2010) (identifying the various dangers of monopoly and arguing for restoring antitrust law); K. Sabeel Rahman, Democracy Against Domination (2016) (arguing that laws structuring the economy, including antitrust, should be focused on preventing economic domination); Lina Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust Counterrevolution and Its Discontents, 11 Harv. L. & Pol’y Rev. 235 (2017) (arguing that the enfeebling of antitrust as a check on concentrated private power has likely contributed to economic inequality); Frank Pasquale, Privacy, Antitrust, and Power, 20 Geo. Mason L. Rev. 1009, 1010 (2013) (identifying antitrust law at its best as a tool for checking the power of dominant firms); Sanjukta Paul, Antitrust as Allocation of Coordination Rights, 67 UCLA L. Rev. (forthcoming 2020) (on file with the Harvard Law School Library) (reframing antitrust as an enterprise that allocates economic coordination rights and arguing that this allocating constitutes the core function of antitrust); Maurice E. Stucke, Reconsidering Antitrust’s Goals, 53 B.C. L. Rev. 551 (2012) (arguing that enhancing efficiency should not be the sole aim of antitrust and identifying economic freedom, a level playing field, and fairness as additional desirable goals); Maurice E. Stucke & Marshall Steinbaum, The Effective Competition Standard: A New Standard for Antitrust, 87 U. Chi. L. Rev. (forthcoming 2020) (on file with the Harvard Law School Library) (arguing that replacing the consumer welfare standard with an “effective competition” standard will help reorient antitrust towards dispersing concentrated private power); Zephyr Teachout & Lina Khan, Market Structure and Political Law: A Taxonomy of Power, 9 Duke J. Const. L. & Pub. Pol’y 37 (2014) (identifying ways in which exercises of power by large corporations function as forms of private governance and arguing that antitrust law and policy should be treated as a critical tool of democracy reformers); Sandeep Vaheesan, Accommodating Capital and Policing Labor: Antitrust in the Two Gilded Ages, 78 Md. L. Rev. 766 (2019) (arguing that enforcement should be reoriented towards controlling the power of large corporations rather than targeting workers who organize for higher wages and improved working conditions); Lina M. Khan, Note, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 744 (2017) (arguing that a welfare-based approach to antitrust neglects critical structural considerations, as evidenced by Amazon); Matt Stoller, How Democrats Killed Their Populist Soul, The Atlantic (Oct. 24, 2016), https://www.theatlantic.com/politics/archive/2016/10/how-democrats-killed-their-populist-soul/ 504710 [https://perma.cc/9FAC-R673] (tracing Democrats’ abandonment of antimonopoly politics). Two aspects of this break are most notable: first, the fact that the debate cuts to foundational questions about the goals of antitrust, and second, its highly public-facing nature. No longer relegated to law journals and practitioner conferences, antitrust has once again been thrust to the forefront of public conversation, prompting front-page headlines,8×8. See, e.g., Brent Kendall & John D. McKinnon, Justice Department Is Preparing Antitrust Investigation of Google, Wall St. J. (June 1, 2019), https://www.wsj.com/articles/justice-department-is-preparing-antitrust-investigation-of-google-11559348795 [https://perma.cc/ZR3J-ZBJE]; Steve Lohr, House Antitrust Panel Seeks Documents from 4 Big Tech Firms, N.Y. Times (Sept. 13, 2019), https://nyti.ms/31f9LyN [https://perma.cc/M9AQ-G9SF]; Tony Romm, Elizabeth Dwoskin & Craig Timberg, Justice Department Announces Broad Antitrust Review of Big Tech, Wash. Post (July 23, 2019), https://www.washingtonpost.com/technology/2019/07/23/justice-department-announces-antitrust-review-big-tech-threatening-facebook-google-with-more-scrutiny [https://perma.cc/72YS-S2TP]; David Streitfeld, To Take Down Big Tech, They First Need to Reinvent the Law, N.Y. Times (June 20, 2019), https://nyti.ms/2J8QAiv [https://perma.cc/Z9XB-UND2]. congressional hearings and investigations,9×9. See, e.g., Press Release, House Judiciary Committee, House Judiciary Committee Launches Bipartisan Investigation into Competition in Digital Markets (June 3, 2019), https://judiciary. house.gov/news/documentsingle.aspx?DocumentID=2051 [https://perma.cc/6GZG-T45K] (announcing that the House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law was initiating a broad investigation into the state of competition in digital markets and the adequacy of existing laws); Hearings: Online Platforms and Market Power, Part 1: The Free and Diverse Press, House Judiciary Committee (June 11, 2019), https://judiciary. house.gov/calendar/eventsingle.aspx?EventID=2260 [https://perma.cc/G36J-R3CF]; Hearings: Online Platforms and Market Power, Part 2: Innovation and Entrepreneurship, House Judiciary Committee (July 16, 2019), https://judiciary.house.gov/calendar/eventsingle.aspx? EventID=2258 [https://perma.cc/E63T-M667]; Hearings: Online Platforms and Market Power, Part 3: The Role of Data and Privacy in Competition, House Judiciary Committee (Sept. 12, 2019), https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=2294 [https://perma.cc/ T2P4-E8ND]. magazine covers,10×10. See, e.g., Charles Duhigg, The Case Against Google, N.Y. Times Mag. (Feb. 20, 2018), https://nyti.ms/2C7Sb6Y [https://perma.cc/WKB8-4EQQ]; Too Much of a Good Thing, The Economist (Mar. 26, 2016), https://www.economist.com/briefing/2016/03/26/too-much-of-a-good-thing [https://perma.cc/FU6B-MDTQ]. and discussion at a presidential debate.11×11. See Naomi Nix, Ben Brody & David McLaughlin, Democrats Slam Corporate Power with Vow of Antitrust Crackdown, Bloomberg (June 26, 2019), https://www.bloomberg.com/news/articles/2019-06-27/democrats-slam-corporate-power-with-vow-of-antitrust-crackdown [https://perma.cc/7PZ2-8D7M]. Antitrust law has been transformed quickly from a relatively settled and sequestered domain of expertise to an area of active debate, with its future now something to be constructed rather than inherited.

Professor Tim Wu’s The Curse of Bigness is a book for this moment. In just under 150 pages, Wu offers a sweeping history of antitrust law and traces how it is that, in his view, antitrust became unmoored from its central tenets and animating principles. The book presents a diagnosis and a bold call to arms, seeking to recover a republican theory of antimonopoly and to rehabilitate robust antitrust enforcement. Writing about a specialized area of law for a generalist audience inevitably exposes an author to criticism, which Wu has drawn.12×12. See, e.g., Douglas Ginsburg, Judging a Book: Ginsburg Reviews ‘The Curse of Bigness,’ Law360 (Dec. 3, 2018, 5:12 PM), https://www.law360.com/articles/1099074 [https://perma.cc/T9QC-WWU3]. But assessing the book solely as an academic contribution misunderstands the theory of change reflected in Wu’s choice of format. The Curse of Bigness is written for a mainstream audience because Wu believes that reinvigorating antitrust will require more than winning over academics or practitioners. Instead, informing and engaging the public — including advocates, organizers, policymakers, journalists, and other general readers — is a prerequisite for creating the political pressure needed to reorient antitrust around the antimonopoly values it has abandoned in recent decades.13×13. As used by contemporary antitrust reformers, “antimonopoly” refers to a framework that seeks to control and check private concentrations of economic power. Promoting antimonopoly does not categorically require promoting competition or decentralization, and it relies on a toolkit broader than just antitrust. Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131, 131 (2018).

This Review builds on Wu’s book to explain the significance of the current rupture in antitrust and to situate it within a broader intellectual trajectory. Debates over the foundational purpose of antitrust are not new, and examining how this latest clash fits alongside previous contestations is essential for understanding what has yielded the current contestability and assessing the competing visions.

Part I of this Review summarizes Wu’s chief contributions in The Curse of Bigness, focusing on three tenets that form the basis of the book. Part II offers an analytic breakdown of the overhaul in antitrust doctrine that is the subject of Wu’s critique, tracing the transformation of antitrust to changes in descriptive claims and normative assumptions that the Chicago School introduced. I argue that framing Chicago’s interventions this way lets us map the current antitrust debate with greater coherence. Doing so, moreover, reveals the limits of proffered correctives to the Chicago School and underscores the need for what has been called a “Neo-Brandeisian” program in law and political economy. Part III argues that a central component of the Neo-Brandeisian project should include reforming the institutional structure of antitrust law and policy. Although most critiques of present-day antitrust focus on doctrinal rules and the substantive legal framework that governs antitrust analysis, the exclusive reliance on a common law approach to antitrust is a key source and enabler of current dysfunctions. Complementing (or even largely supplanting) this common law structure with an administrative approach would both equip antitrust to keep pace with evolving business practices and new market realities and help democratize antitrust in the ways that Wu and other reformers champion.

 


* Academic Fellow, Columbia Law School; Counsel, U.S. House Committee on the Judiciary, Sub-committee on Antitrust, Commercial, and Administrative Law. This Review reflects my personal views and not those of the Committee or any of its members. For insightful comments and con-versations, I am grateful to Eleanor Fox, David Grewal, Lev Menand, John Newman, and Marshall Steinbaum. Many thanks to the Harvard Law Review for thoughtful feedback and careful editing.