Methodological and normative elements of the new antitrust

Extract

Given the premise of this issue, I will dispense with any table-setting regarding the current moment in US antitrust debate and discussion, which spans the academic, regulatory, and policy spheres. Instead, this essay focuses on articulating the central methodological and normative elements of a particular strand of this debate: the one which advocates basic changes to the existing settlement in the direction of deconcentrating economic power.¹

I. KEY ANALYTIC ELEMENTS OF THE NEW ANTITRUST

The methodological or analytic elements of the new approach in antitrust thinking have received less sustained attention—certainly in broader public discussion, but even in academic debate—than the normative elements. The latter are also fairly straightforward, even if there is some variation across contributors. I therefore give more attention to the shared analytic or methodological approach here, identifying two essential elements in particular.

The first key element is the recognition that economic coordination is endemic in the economy and more generally, is inevitable. As a result, organizing and choosing among mechanisms of economic coordination is a central aspect of the legal design of markets and the economy, including but not limited to the working of antitrust law. This recognition then leads into critical and constructive work in various specific doctrinal and policy areas—from the legal treatment of horizontal coordination to the labor-antitrust intersection to vertical restraints to corporate mergers and the theory of the firm—given that many areas of antitrust law and streams of antitrust thinking insufficiently integrate the ubiquity of economic coordination.