COUNTER-INTUITIVE FAIRNESS IN ANTITRUST: PROTECTING THE MONOPOLIST AND BALANCING AMONG COMPETING CLAIMS

Abstract

Antitrust originated in popular resistance to 17th century Royal Grants and 19th century economic power. This article contends that much of the guiding force of today's antitrust policy stems from these early sentiments, applied to thoroughly different legal and economic circumstances. Specifically, “monopolists” constrained by antitrust law are very different today from their historical counterparts, sharing a name but little else. Modern antitrust, with its focus on price-theoretic micro-models, treats all bearers of market power alike—despite markets being narrowly defined and economic and political effects differing greatly among them. Antitrust, as practiced today, infringes upon rights to property and freedom of contract and “gets away with it” simply by defining those constrained as “monopolists.” The implicit assumptions that this article challenges are that monopolists as such deserve no protection and that by mere virtue of their monopolistic status can be constrained whenever it is in society's (or consumers') interest to do so. I examine the rights monopolists might justifiably claim, as well as counter-arguments to such claims, within the framework of Rawls' theory of justice and his “veil of ignorance” thought experiment. These allow for going beyond current biases to examine what a just society would demand of its economic actors, and when justice demands protection of those limited by today's antitrust policy.