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Antitrust Jurisprudence Is the Right’s Greatest Legal Success

The latest evidence that the right is troubled these days comes from The American ConservativeThere Daniel Kishi attacked Robert Bork for redirecting antitrust law to the detriment of the American economy. The reformation of competition law in America, which has influenced law around the world, is in reality one of the greatest achievements of the forces for liberty. It replaced various interpretations that courts in the eras of the New Deal and the Great Society used to maximize their own discretion at the expense of economic efficiency in favor of one that has served the cause of consumers and innovation. A mark of the folly of Kishi’s critique is that he even praises Brown Shoe, an enduring marker of judicial activism and incoherence that is much of a piece with the rest of Earl Warren’s jurisprudence.

But begin with the one thing that Kishi gets right. As I have discussed elsewhere, antitrust law now resembles the recommendations that Bork laid out in his famous book, the Antitrust Paradox.  Disagreement on particular antitrust cases, of course, continues, but the disagreements take place in the legal landscape that he created. I would analogize Judge Bork here to the most successful kind of statesman ― one who, like Margaret Thatcher ― transforms even the opposition by creating new terms of debate.

Kishi’s other arguments are wrong in every respect. Bork did not pervert the law by making economic efficiency and consumer welfare the lodestar of antitrust. The Sherman Act condemns only “restraints of trade” and “monopolization.” In its early interpretations of the Act, the Supreme Court correctly required a restraint of trade or monopolization to be based on a practice that was “not honestly industrial.” This interpretation reflected the common law origins of these terms. Mere size or innovative practices that put pressure on competitors was not condemned. Otherwise antitrust law itself would become a barrier to innovation in the economy.

Nor did the Clayton Act change the basic orientation of the antitrust laws. To be sure, some supporters of the Act spoke in the expectation that it would help small business given what they understood to be the current risks of monopolization. But they never disputed that the antitrust was to promote the welfare of consumers.

The most extraordinary aspect of Kishi’s attack on Bork is his defense of Brown Shoe. Little in the history of the Supreme Court has been worse than Chief Justice Warren’s opinion in that case: it is the jurisprudential equivalent of two plus two equals five. The case concerned a government challenge to a proposed merger between two manufacturers and retailers of shoes. The shoe market was wholly unconcentrated and the merger would have created a company with only about a five percent market share. Warren condemned such a puny merger by claiming without evidence that this small merger was going to leading to concentration as other firms merged. This kind of analysis gives the courts discretion to shape industries on the basis of unsupported suppositions about an unknowable future.

And because Warren lacked any principled framework for economic analysis, the Court managed to contradict itself within the space of a single paragraph, a record even for Warren:

The retail outlets of integrated companies, by eliminating wholesalers and by increasing the volume of purchases from the manufacturing division of the enterprise, can market their own brands at prices below those of competing independent retailers. Of course, some of the results of large integrated or chain operations are beneficial to consumers. Their expansion is not rendered unlawful by the mere fact that small independent stores may be adversely affected. It is competition, not competitors, which the Act protects. But we cannot fail to recognize Congress’ desire to promote competition through the protection of viable, small, locally owned business. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision.

The Court thus states that the Act protects competition, not competitors, but then asserts in the next sentence that competitors must be protected. It is left to the Court’s discretion to make trade-offs between these two incompatible goals. It is hard to understand why any conservative would join Warren in maximizing judicial discretion at the expense of economic coherence.

Reader Discussion

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on March 07, 2018 at 07:53:02 am

Bravo. “A mark of the folly of Kishi’s critique is that he even praises Brown Shoe, an enduring marker of judicial activism and incoherence that is much of a piece with the rest of Earl Warren’s jurisprudence.” Well done, Professor!

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Mark Pulliam
on March 07, 2018 at 08:08:55 am

I agree with this critique, but Kishi did get one other thing correct: a primary, perhaps the primary, original motivation for antitrust law was not consumer welfare, but protecting small producers from giant competitors.

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Image of David Bernstein
David Bernstein
on March 07, 2018 at 09:21:04 am

Apparently, Kishi wishes to lay the blame for "... wage stagnation and income and wealth inequality" at Bork's feet.

And
"But perhaps most importantly, the adoption of Bork’s “consumer welfare” standard has fundamentally reoriented what it means to be a citizen of the United States."

Astonishing,really when one considers that he is talking about a failed SCOTUS nominee.
Oh Heavens, what terrible ills would Bork have inflicted upon the nation had he been confirmed.

Gee, Kishi may just as well adopt Ted Kennedy's position - Oops, perhaps he is but in more moderate form.

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Image of gabe
gabe
on March 07, 2018 at 10:49:52 am

Thanks for this splendid rebuttal to Kishi's attack on Bork and the reformation of antitrust law. I would recommend to readers Professor Dominic Armentano's excellent book The Myths of Antitrust, which offers an even more radical critique of antitrust.

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George Leef
on March 07, 2018 at 11:41:59 am

While antitrust is not my muse I was an associate assigned to bag-carrying duties in an antitrust litigation when Bork published Antitrust Paradox, and by then I had learned enough about the field to appreciate the genius of the man. I later came to appreciate Bork's importance to political/legal/cultural conservatism in ways that are, to me, far more important than mere anti-trust law.

Thus, I maintain that degrading conservative legacy is what Kishi is REALLY all about.

His is but another crypto-political foray on behalf of the Progressive Commie Academy, another of the PCA's insidious ideological tactics aimed at a) abusing conservative scholarship and scholars (like Bork) of all stripes, b) rationalizing Leftist constitutional jurisprudence, c) distorting or ignoring the hideous consequences of liberal legislation and jurisprudence, and d) writing hagiographies of the principal perpetrators of the Left's political and legal disasters.

One need only read the mountains of tripe praising the lives and puny opinions of Douglas, Warren, Brennan and now Ginsburg, lauding the ash heap of LBJ's Great Society, calling a patent moral fraud, Ted Kennedy, the "Lion of the Senate'' and now rewriting Obama's incomparably destructive presidency.

Kishi on Bork is (small) part and (inconsequential) parcel of the Left's long, jack-booted march through American cultural history. What Ted Kennedy and Joe Biden did in Borking Bork's conservatism and what the academic Left would now do to impugn even Bork's antitrust legacy, the Left has been doing for decades to constitutional law, political theory, great literature and American history: deconstruction aimed at destruction.

Just you wait and see: Clarence Thomas is next, and Anita Hill will not be the only weapon of destruction.

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timothy
on March 07, 2018 at 12:01:12 pm

And I would note that Leftist goals in these days of Never Trump are often pursued by soi-disant "conservatives" operating under the banner of conservatism.

In my opinion Kishi's analysis of Bork's antitrust work may fit that bill.

Bill Kristol, son of Irving, apparently died and was reborn so that he, too, now fits that bill.

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timothy
on March 07, 2018 at 12:27:01 pm

I second that recommendation!!!!

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gabe
on March 07, 2018 at 13:20:09 pm

The disheartening thing about Kishi’s ill-informed attack was that it appeared, not in Slate, HuffPo, the Nation, ir some other leftist rag, but in The American Conservative. Go figure. What’s next? A revisionist critique of Ronald Reagan? The “deconstruction” of William F. Buckley? An “expose” of Milton Friedman?

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Image of Mark Pulliam
Mark Pulliam
on March 07, 2018 at 16:17:40 pm

Damn it, Mark:

Do not give those cretins any ideas!

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gabe
on March 08, 2018 at 04:22:04 am

The greatest anti-trust development was creating a federal system and then dividing the government into three branches. The tenth amendment that prohibits the federal government from creating a monopoly was the ultimate anti-trust victory. The only thing that came close was the second amendment prohibiting the government from having a monopoly on violence.

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Image of Locke's anti-trust revolution
Locke's anti-trust revolution
on March 08, 2018 at 09:27:02 am

True - unfortunately, the Tenth is dead and the Second is under vigorous assault (uh-oh, better not use assault as it may offend) - let us say, the 2nd is under *review*.

Heck, the First may also need worry - just look to what has happened in other English speaking countries (UK, Canada)

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Guttenburgs Press and Brewery
on March 09, 2018 at 23:36:54 pm

But Sessions himself is attacking the rights of the states. Oh, how the mighty change! I remember when Alabama came in as amicus curiae with California on medical marijuana rights--yes, Alabama definitely disagreed with California's interpretation of the law, but they thoroughly agreed with California's right to do so.

Wasn't Sessions involved with that?

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excessivelyperky
on March 28, 2018 at 06:47:27 am

[…] “Antitrust Jurisprudence Is the Right’s Greatest Legal Success” [John McGinnis, Law and Liberty] […]

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Image of March 28 roundup – John Culbreath
March 28 roundup – John Culbreath
on April 07, 2018 at 15:07:52 pm

[…] John McGinnis is correct: among the greatest and most praiseworthy successes over the past half-cent….  (HT Alberto Mingardi) […]

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Some Links - Cafe Hayek
on April 08, 2018 at 16:47:30 pm

The American Conservative is the ideal publication for protectionist thinking.

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Ron W.

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.