Antitrust and Equal Liberty*

• Published date: 01 September 2023
• DOI: http://doi.org/10.1177/00323292231183825
• Author: Kate Jackson
• Date: 01 September 2023
• Subject Matter: Articles

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 law—what 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 citizens’equal 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 antitrust—and 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 Neoliberalism”and 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) 337–363

© 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 terms—monopoly, competition,

unfair methods of competition, and conspiracy in restraint of trade—are “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-

Brandeisians”want 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 “superstatute”that, 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

cases”that 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 CEO’s 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)