Antitrust and its Intellectual Milieu

• Published date: 01 June 1997
• DOI: 10.1177/0003603X9704200202
• Date: 01 June 1997
• Subject Matter: Symposium: Provocations and Reflections upon Competition Policy in America

The Antitrust Bulletin/Summer 1997 333

Antitrust and its intellectual milieu

BY DANIEL r. GIFFORD*

I.

The

challenge

posed

by the

Peritz

book:

competition

policy

viewed

in its political,

legal

and

intellectual

context

In his Competition Policy in America 1888-1992,1 New York Law

School Professor Rudolph J. R. Peritz has created a tour de force

in which he has managed to view antitrust law in the context of its

changing relations to the larger political and legal milieu, subjects

that are themselves continually in flux. Reading this book is to

take a grand tour of the currents of politics, economics and law

that have accompanied American growth over the last 100 years.

Peritz is both informative and provocative. He has given us a

*Robins, Kaplan, Miller &Ciresi Professor of Law, University of

Minnesota.

AUTHOR'S NOTE: The author gratefully acknowledges the helpful com-

ments on an earlier draft

of

this article provided by his colleagues, profes-

sors Jim Chen, Daniel A. Farber. Leo Raskind

and

Dean E. Thomas

Sullivan.

RUDOLPH l.R. PERITZ, COMPETITION POLICY IN AMERICA 1888-1992:

HISTORY,

RHETORIC,

LAW

(1996).

©1997 by Federal Legal Publications. Inc.

334

The antitrust bulletin

book that is a

joy

to read and a major contribution to the intellec-

tuallife

of our time.

Peritz brings us into the tumultuous political and legal con-

flicts that have racked the nation over the last one hundred plus

years. Differences in approaches toward antitrust are related to

analogous differences in approaches toward constitutional

Iaw.?

Indeed the importance and meaning that their supporters placed

upon rights to property and to liberty of contract under the Fifth

and Fourteenth Amendments were part and parcel

of

agestalt that

determined their approaches toward interpreting the Sherman Act.

As Peritz tells the story, the antitrust battle lines formed in the

Trans-Missouri

case.'

There the prevailing literalist camp was led

by Justice Peckham who (following Senator Sherman) adopted an

individualist image of competition and who saw a threat to liberty

posed by private economic power. The opposing camp, led by Jus-

tice White, emphasized the importance of property and liberty

of

contract.' In the dominant contemporary view, property and con-

tractual liberty were bulwarks

of

individual freedom against a

potentially overbearing government. When the Court invalidated

New York legislation regulating the hours and wages of bakers in

the infamous

Lochner

case,> Justice Peckham justified the Court's

result as protecting the bakers' liberty of contract. In Peckham's

mind, he and the Court majority were protecting "small dealers

and

worthy

men"

from

private

economic

power

in

Trans-

Missouri- just as they were protecting workers from an overzeal-

ous paternalistic state in Lochner.'

Professor James May had also developed this approach. See James

May, Antitrust in the Formative Era: Political and Economic Theory in

Constitutional and Antitrust Analysis. 1880-1918, 50

OHIO

ST.

L.J. 257

(1989).

United States v. Trans-Missouri Freight

Ass'n,

166 U.S. 290

(1897).

PERITZ,

supra note 1, at 27.

Lochner v. New York, 198 U.S. 45 (1905).

166 U.S. at 323.

Accord, May, supra note 2, at 303.

Intellectual milieu 335

The dilemma emerging from these early cases is whether the

threat to liberty stems more from powerful government or from

powerful private interests. This dilemma has continued and has

been a major source of political and legal controversy throughout

the past century. Indeed, these conflicting approaches are often

captured in the respective rhetorics

of

liberty and property. As

Peritz observes, these different rhetorics continue to reflect, in our

current society, differing attitudes toward private power and gov-

ernmental power. Peritz uses two cases involving union hand-

billing

activities

to

illustrate

these

differences

in a

current

configuration:" In

DeBartolo

Corp.? the Court ruled that hand-

billing in the parking lot outside of a shopping mall was not an

unfair labor practice, thus preferencing liberty of expression over

property, while in Lechmere,

Inc.,1O

the Court later reversed these

relative

preferences by holding that union organizers have no

general right

of

access to the

employer's

property. He further

develops this theme in a critique

of

the Court's approach to cam-

paign financing and First Amendment protection of commercial

advertising.

Although Peritz's winding tour

of

the interweaving strands

of antitrust and constitutional law is a marvelously engaging one,

Inonetheless have repeated disagreements with his interpretations

of

historical events and with his evaluations of them. Much

of

my

disagreement with Peritz relates to his apparent sympathy for a

vision of an industrial society modeled upon the

egalitarian-but

agrarian-society

associated with Thomas Jefferson and described

by Alexis de Toqueville.!' As I point out below, Peritz'srhetoric

advances aquasi-Jeffersonian industrial model

of

society as an

PERITZ,

supra note 1, at 294.

9DeBartolo Corp. v. Florida

Gulf

Coast Bldg. &Constr. Trades

Council, 485 u.s.568 (1988).

10 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).

11

ALEXIS

DE

TOQUEVILLE,

DEMOCRACY

IN

AMERICA

(1993 ed.). See the

discussion of the Jeffersonian strand in U.S. antitrust law in E.

THOMAS

SULLIVAN

&

JEFFREY

L.

HARRISON,

UNDERSTANDING

ANTITRUST

AND

ITS

Eco-

NOMIC

IMPLICATIONS

2-5

(2d ed. 1994).