Maybe we have all been wrong about antitrust law

Abstract

There is a broad push for antitrust reform in the USA. Critics have proposed legislation that would overrule what they regard as mistaken or unwise judicial decisions and an array of new laws that would impose broad restrictions on the large digital platforms. Critics have complained that the law is too defendant-friendly and is focused too much on economic welfare and not enough on other values like fairness and equality that are said to have motivated antitrust legislation in the first place. So far, however, the progressive leaders of the US antitrust agencies have not persuaded courts to overturn criticized legal doctrine or to adopt important new principles, and the proposed legislation has not gotten close to enactment. More conservative commenters think US antitrust law is working well and does not need substantial reform. Among other things, these commenters adhere to the view that false positives are more costly than false negatives; and they continue to welcome rules like those governing predatory pricing,1 refusals to deal,2 and two-sided platforms3 that make it almost impossible for plaintiffs to win. Today, at least, conservative arguments find a generally hospitable audience in a conservative judiciary.