Democracy and law in the new American antitrust

Abstract

There is an inverse relationship between those who argue that judges, guided by economists, are well suited to the task of determining the ultimate social value of an individual merger or business practice, and those who believe that antitrust law plays a central role in the protection of human freedom and democracy. The more one is concerned with private sector threats to freedom, the more one treats antitrust as a public enterprise and seeks simple, administrable, publicly legible rules, with less discretion for judges, and a limited role for case-specific economic analysis. Conversely, if one is relatively unconcerned with democratic threats from the private sphere (or takes as a prior that only campaign finance law can address such threats), the more one understands antitrust as a microeconomic technical enterprise and seeks a single standard that is methodologically legible to economists, with a significant role for case-specific economic analysis. The Biden administration’s extraordinary re-invigoration of American antitrust in the name of democracy, workers, and macro-economic vitality should be understood in these terms.