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This is a book that should be in every "competitiveist" library. Barry Hawk demonstrates a dazzling erudition. His aim is to paint a picture of competition law in time and space to highlight common aspirations for protection and diverse cultural expressions. He thus offers a globalized community of institutions, practitioners and academics a universal anchor without obscuring the differences, which he explains through skilfully described contexts.
One chapter is devoted to the premodern period, from ancient times to 1880. He explores the rules of prohibition and control in Europe, but also in India and China. Barry Hawk is not trained as a legal historian, but he claims a specific contribution: the eye of an antitrust specialist to probe and assess these rules. In Europe, the social tensions caused by famines and the resulting recurrent violence are a constant background until the nineteenth century. The moral precepts of the Fathers of the Church, the rabbis and the imams give a particular colouring to the rules aimed at combating overbidding and scarcity of an artificial nature. This type of profit is stigmatized as illegitimate. He studies the regulation of grain transportation and trade, all kinds of trade restrictions, monopolies, guilds and corporations. One regret for us French lawyers: Domat is not quoted in the developments relating to French law. This is all the more regrettable because our eminent jurisconsult has provided, in this jumble of rules on the police of markets, an interesting arrangement by setting out two principles, namely the prohibition of coalitions and that of monopolies. Barry Hawk notes that the term "monopoly" was often used to designate what we would call a cartel today. In our old law, the expression "coalition against the public interest" was clearly used since Charlemagne, and Domat collected it. Barry Hawk’s explanation of market police laws is interesting. He attributes them to the presupposition that the right price can only result from a negotiation on the market place itself. He then makes a comparison with another presupposition that has prevailed in the United States, with the opposite result: that of deregulation.
The chapter on antitrust law in the United States is of great interest to us Europeans. Barry Hawk insists on several findings. Firstly, antitrust could not remain an instrument to counteract mere commercial organisation. It had to evolve and be interpreted broadly to become a law designed to promote competition as a general principle, even if the original name remained. Second, Barry Hawk does not dwell on the expansion period from 1937 to the 1970s, but prefers to focus at length on the analysis of the downturn. To characterize it, he chooses an expression, repeated several times throughout the book, which summarizes his analysis: "inhospitality weltanschauung". In other words, it is a state of mind and not a scientific thought that determines this period. The author’s intention is not to dwell on the successive schools of thought that have marked the history of antitrust. However, this weltanschauung could be analysed by the hold of the Chicago School on minds, notably thanks to the extraordinary hype and financial support it received from those who benefited from it. To pick up the thread of Barry Hawk’s analysis, this conception of defiance was directed at antitrust itself, not at the behavior of powerful corporations. A new obsession was born: "legal process concerns". All antitrust law was sifted through the sieve of procedural costs, false positives and lack ofadministrability. In contrast, presuppositions constituting a powerful weltanschauung prevailed: the notion ofefficiencies, the ephemeral nature of market power, the inability of governments to intervene in the functioning of markets in contrast to the effectiveness of self-regulation. This wave has swept over antitrust and has resulted in a spectacular retreat. Barry Hawk recalls Bork’s confusion over the notion of consumer welfare. Thus, antitrust law, having failed to meet the challenges of the new digital economy, has given rise to a counter-reaction embodied by leading figures such as Lina Khan, Tim Wu and Jonathan Baker. The notion of consumer welfare is being undermined by analyses of short-term effects on prices and production, to the detriment of quality and innovation, which are more difficult to assess. Of course, Barry Hawk could not avoid mentioning the battle waged by Herbert Hovenkamp, who was keen to maintain a scientific analysis in order to avoid any populism in antitrust. But Barry Hawk is pushing for Congress to reintroduce a broad prism. He is also highly critical of the U.S. Supreme Court, particularly in the 2018 American Express decision, to which he attributes much of this phenomenon of antitrust’s narrowing, if not emasculation. He cannot but note, on the international scene, its loss of attractiveness to EU competition law, especially in the treatment of dominant firms.
The chapter on competition law in Europe holds few surprises for Europeans, but it is important that its fundamentals be recalled for others. Barry Hawk, known as a keen analyst of EU law, likes to present it as an alternative to US law on the international scene. He insists on its most outstanding feature, which is, according to him, the purpose dedicated to the construction of Europe and to the integration of national markets into a large single market. He also stresses its capacity to be applied to public companies and network industries. He underlines the opinion of many experts that European markets are more competitive than American ones.
Finally, in the last chapter on the lessons of history, he returns extensively to the strength of the presuppositions, particularly in the United States, on this weltanschauung that has had a considerable impact on judges and on the risk of losing, if not already having lost, the role of world leader in competition law. One important discussion in the United States is still worth noting: the risk of introducing other public policy objectives into competition enforcement. Barry Hawk takes a middle ground by recommending compromises for reconciling these public interests with competition policy. He recommends translating them into economic values that can be incorporated into competition law rules. Otherwise, it considers that these legitimate objectives should only be implemented in separate policies.
The book is an enjoyable, thought-provoking, and caustic read, but it is not a manifesto of the neo-Brandeisian movement. It contributes to the debate not only in the United States, where certainties are shaking, but also in other legal systems.
