Antitrust and Equal Liberty*

Published date01 September 2023
DOIhttp://doi.org/10.1177/00323292231183825
AuthorKate Jackson
Date01 September 2023
Subject MatterArticles
Antitrust and Equal Liberty*
Kate Jackson
University of Cincinnati College of Law
Abstract
As Robert Bork once asserted, Antitrust policy cannot be made rational until we are
able to give a f‌irm answer to one question: What is the point of the lawwhat are its
goals? Everything else follows from the answer we give.The appropriate answer,
however, is not, as Bork suggested, consumer welfare. Instead, antitrust should
serve the equal liberties that citizens give themselves when they engage in economic
activity. Given the complexity and interconnectivity of the economy, however, the
deliberations in which citizens and policymakers engage will produce a messy cacoph-
ony. While leaving the precise content and scope of citizensequal liberties open, this
article provides a cognitive framework that should nevertheless prove useful as they
make sense of the noise. It explains that while business can claim associational free-
doms, those freedoms challenge the autonomy of rights of corporate insiders and
outsiders alike and should be constrained accordingly. Indeed, this is how citizens
have historically understood antitrustand they can and should do so again.
Keywords
antitrust, equal liberty, market rights, democratic theory, legal theory
*This article is part of a special issue of Politics & Society titled Antitrust in the Age of Concentrated
Power,which originated in a 2021 APSA roundtable titled Reclaiming Antitrust for Democracy: Antitrust
after Neoliberalismand which includes articles by Steven K. Vogel, Kate Jackson, Samuel Bagg, Brian
Callaci, Gerald Berk and AnnaLee Saxenian, and Zephyr Teachout. For an introductory overview that
theorizes markets as allocators of power, sketches the recent emergence of an antitrust reform movement
that focuses on power, and summarizes each article, see the contribution by Steven K. Vogel, Market
Governance as a Balance of Power.
Corresponding Author:
Kate Jackson, University of Cincinnati College of Law, Off‌ice 440, 2925 Campus Green Drive, Cincinnati,
OH 45221-0040, USA.
Email: kvjack1@gmail.com
Article
Politics & Society
2023, Vol. 51(3) 337363
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00323292231183825
journals.sagepub.com/home/pas
The content of antitrust law is elusive. Its central termsmonopoly, competition,
unfair methods of competition, and conspiracy in restraint of tradeare inherently
vague and not self-def‌ining.
1
The legislative histories of the Sherman, Clayton,
Federal Trade Commission, and Celler-Kefauver Acts are riddled with conf‌licting
statements of purpose.
2
These statutes are meant, variably, to foster competition,
shelter small business, keep prices low, keep prices fair, allocate resources eff‌iciently,
equalize economic opportunity, fortify against fascism, protect political equality, and
decentralize decision-making.
3
Given such indef‌inite marching orders, courts struggle
to apply something like the rule of law in complex balancing tests that often yield
inconsistent results.
4
The law and economics movement in antitrust, commonly asso-
ciated with Robert Bork, perhaps gained purchase precisely because of its focus on a
calculable consumer welfare standard. It promised neutral, scientif‌ic clarity in lieu of
the politicized legal reasoning that judges would likely apply when given too much dis-
cretion to impose their own contestable values upon litigants.
5
More recently, neo-
Brandeisianswant to bring antitrust back to its populist roots. They emphasize the
role it might play in constraining economic power.
6
Lina Khan, chairperson of the
Federal Trade Commission, urges scholars to develop a normative theory of antitrust
that highlights the processes and structures of our economic life.
7
Meanwhile, demo-
cratic theorists warn that a def‌icit in popular control of institutions feeds populist pol-
itics.
8
Accordingly, antitrust, which targets the power of many such institutions, also
aspires to democratic political transformation.
In this article, I argue that the ambiguity and politically charged character of anti-
trust law should not be lamented. It should instead be taken as an invitation for both
citizens and academics to think through what antitrust should mean to democracy,
and what democracy should mean to antitrust. My contribution to this special issue,
along with that of Samuel Bagg, ventures a few responses to this invitation. I argue
that the challenge posed by the ambiguity of antitrust gives democratic publics a
chance to spell out for themselves what their equal economic liberty should mean in
the face of big business. This is because ambiguity is an indelible feature of any
abstract legal norm that encourages citizens to elaborate the content of their rights
on their own terms.
9
For example, citizens routinely offer competing interpretations
of their abstract rights to free speech and religious exercise. Similarly, antitrust can
serve as a superstatutethat, like rights to speech and religion, cannot help but
invite politicization precisely because politics often amounts to arguments about
what our rights mean and how far their boundaries should run.
10
Just as in any
rights-talk, there will strident arguments and appeals to both rationality and authority.
There will be haggling, compromise, and temporary resolutions. There will be big
casesthat drag the public into an inquiry about what values our rights should
protect and what collateral damage such protections might do to the rights of
others.
11
When debating the appropriate content of antitrust law, for example, corpo-
rate leaders might claim the freedom to arrange their business affairs according to their
own lights. In response, consumers might object because the CEOs choices reduce
their own choices and lead to dominating treatment. Employees and small business
might weigh in by demanding the strength to act against corporate abuse. Others
338 Politics & Society 51(3)

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