Reactionary Antitrust

Article to be published in Herbert Hovenkamp Liber Amicorum, N. Charbit and al. (eds.), Concurrences, 2020.

The antitrust enterprise is undergoing a renaissance. New voices have emerged. Issues long considered settled have been opened for re-examination. Lively debate has prompted antitrust stakeholders to re-evaluate familiar concepts like the “consumer welfare” standard. But while some have welcomed this opportunity for self-reflection, others have responded with baseless attacks, flawed criticisms, and a stubborn refusal to engage with their opponents—whom they deride as “Hipster Antitrust.” What has been lacking thus far is an equivalent label for the other end of the spectrum. This essay proposes “Reactionary Antitrust,” drawing inspiration from a recent reference by Herb Hovenkamp to the “reactionary leftovers of the Chicago School.” Reactionary Antitrust is a grouping of flawed, baseless arguments that appear designed to stifle debate, rather than truly engage in it. These include portraying hipsters as “political” and “populist,” placing impossible burdens of proof on would-be reformers, attacking straw-man versions of hipster arguments, and ignoring the most important internal critiques of the consumer-welfare standard. This essay urges an end to Reactionary Antitrust. Instead of seeking to bury the new critical movement, the antitrust enterprise should welcome it.

I. The end of consensus “Today we enjoy more consensus about the goals of the antitrust laws than at any time in the last half-century.” – Herbert Hovenkamp (2005) [1] 1. Such was the state of affairs upon the publication of Professor Hovenkamp’s The Antitrust Enterprise in 2005. Enterprise presented the distilled vision of the world’s leading antitrust scholar: it was brilliant, concise, and unerringly accurate. Unlike previous classics of the genre, Hovenkamp’s tome did not seek to upend the underlying goals and structures of antitrust law. It instead proposed a number of thoughtful, but incremental, changes to the existing regime. This relatively modest aim was very much in keeping with the times. There was a Fukuyama-esque “End of History” feeling among antitrust insiders during the

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John M. Newman, Reactionary Antitrust, November 2019, Concurrences N° 4-2019, Art. N° 92005, pp. 66-72

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