The Great Leveler: Capitalism and Competition in the Court of Law. By Brett Christophers (Cambridge, Mass., Harvard University Press, 2016) 348 pp. $45.00

Abstract

For Christophers, capitalism is always poised on a knife edge “between the contradictory forces of competition and monopoly, and perennially in danger of lapsing too far to one side or the other” (9). Capitalism avoids disasters by deploying law—antitrust law (“competition law” in Europe)—to reduce monopolization to a tolerable level, and intellectual-property law to encourage innovation. These areas of law are intimately related conceptually, because intellectual-property law confers the power to prevent others from exploiting patents or trademarks, thus creating monopolies with respect to its subject.Christophers paints with a broad brush, though, in passing, he concedes that he has simplified certain areas for purposes of clarification. Mapping large-scale economic developments from the late nineteenth century to the present and focusing on the United States and Great Britain, he identifies three periods of pendulum-like cycling (214). From the late nineteenth century to around 1946, a combination of strong intellectual-property rules and weak antitrust enforcement led to excesses of monopolization. The next period, lasting until the 1970s, saw antitrust law strengthening, followed by a reversal into the present period. Christophers notes as well that the modern emphasis on intellectual-property law has ascended to the international level through such instruments as the trips (Trade-Related Aspects of Intellectual Property Rights) Agreement.Part I of The Great Leveler develops Christophers’ position on controversies within contemporary Marxist theory, engaging extensively with positions developed in the work of Harvey.1 Part II presents Christophers’ historical overview. The breadth of the brushstrokes makes evaluation difficult, though the description of the three periods seems roughly accurate. Emphasizing law as an equilibrating mechanism to preserve capitalism is a promising approach, but Christophers’ exposition raises questions. Although the reciprocal relationship between antitrust and intellectual-property law is correct on the conceptual level, intellectual-property law might not be able to do everything that Christophers claims for it. He lists the Dow Jones Index’s component companies to support the claim that many large companies rely on patent and trademark protection to secure their positions (159). Yet, plausible as his claim is regarding patents (for, say, pharmaceutical companies), it is less plausible for trademarks, which provide substantially weaker “monopoly-like” protection. In supermarkets, for example, branded items sit right next to house versions that duplicate them in everything but name. Christophers’ list includes numerous companies that have assets that are probably due to trademarks rather than to patents. Stronger evidence is necessary to support the idea that trademarks are as important as patents in maintaining market position for companies in general.The mechanism by which antitrust and intellectual-property law perform their equilibrating function also deserves greater attention. Christophers clearly maintains that these domains of law perform as they do for capitalism because they have to do so. Representative statements are: “The law largely reinforced monopolizing tendencies…because it had to” (124); “it happened because it had to” (169); “once more, the law was called upon to come to capital’s aid” (218). Functional accounts of law may be familiar, but they are exceedingly difficult to develop in detail, because the agents who actually articulate and implement the law somehow have to enter into the equation, threatening its objectivity. Christophers gestures toward a more concrete account, with only occasional references to “perceptions” (141) and “opinions” (177)—“opinions” being elaborated most explicitly in connection with the rise of Chicago-influenced antitrust law in the United States (217). It would have been helpful to have some examples of how ideas about intellectual-property law contributed to the pendulum-like effects.Attempting to connect the conceptually related areas of antitrust and intellectual-property with broad developments is an ambitious enterprise. Christophers might well be on to something. Yet, the most that can be said about The Great Leveler at this point is “interesting, maybe correct, but not proven.”