Barak Orbach, University of Arizona College of Law, has posted
How Antitrust Lost Its Goal, which is forthcoming in the
Fordham Law Review 81 (2013). Here is the abstract:
During the first seven decades of the Sherman Act, competition was the uncontroversial goal of antitrust. The introduction of the consumer welfare standard led to the dissipation of “competition” as the goal of U.S. competition laws. This Article explores how antitrust lost the goal of competition, and argues that this goal should be restored. The Article reevaluates several influential antitrust propositions. First, while “consumer welfare” was offered as a remedy for reconciling contrasts and inconsistencies in antitrust, the adoption of the standard sparked an enduring controversy and “set sail on a sea of doubt.” The consumer welfare standard has been a source of confusion and doctrinal uncertainty. Second, the small-business interests hypothesis, which has been often used to explain the enactment of the Sherman Act, is inconsistent with the well-documented historical record. Third, the logic of Robert Bork’s consumer welfare thesis supposedly requires restoration of “competition” as the goal of antitrust. The Article concludes with a straightforward observation: “Consumer welfare” may continue serving as the stated goal of U.S. competition laws but, practically, antitrust has always been and will always be about the preservation of competition.
