A Comment on Markovits’s Welfare Economics and Antitrust

• Published date: 01 December 2023
• DOI: http://doi.org/10.1177/0003603X231201436
• Author: Keith N. Hylton
• Date: 01 December 2023
• Subject Matter: Articles

https://doi.org/10.1177/0003603X231201436

The Antitrust Bulletin

2023, Vol. 68(4) 603 –607

© The Author(s) 2023

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0003603X231201436

journals.sagepub.com/home/abx

Article

A Comment on Markovits’s Welfare

Economics and Antitrust

Keith N. Hylton*

Abstract

I criticize two features of the new book by Richard Markovits. One is the notion that ethics or moral

judgments should be part of our analysis of antitrust. The other is the notion that market definition

is incoherent.

Keywords

competition, consumer welfare, moral theory and antitrust

I will start this comment with a short story. I attended a highly-ranked law school, but I remember

being disappointed often with the quality of analysis offered by many of the law professors when

asked questions that did not draw directly from the law casebook. I had assumed, back then, that it

may have been because law school tenure standards are, notoriously, generally lower than those in

many other academic departments, and this was the natural result of a relatively low tenure hurdle.1

This is not to say that all of the law professors were vulnerable to this criticism, there were excep-

tions to be sure, but many were. I have come to realize, after many years as a law professor, that

there is also a feedback effect. The low tenure hurdle itself positively injures law professors.

Relative to their counterparts in some other academic departments (e.g., economics), they are often

shielded from serious criticism of their opinions. They submit their papers to journals edited by

their own students. They are treated gingerly by their colleagues. The problem only gets worse as

you move up in the law school rankings. The experience shows that the worst you can do to a fellow

scholar is to refrain from criticism, to heap praise upon him. As a general rule, I try to avoid heaping

praise on any scholar for his or her ideas. Ideas are strangers, not friends, to paraphrase Mill, and

the long-term health of the academy depends on scholars feeling free—if you will forgive the vio-

lence of this metaphor—to shoot ideas down.

*School of Law, Boston University, Boston, MA, USA

Corresponding Author:

Keith N. Hylton, William Fairfield Warren Distinguished Professor, School of Law, Boston University, Boston, Massachusetts

0221, USA.

Email: knhylton@bu.edu

1201436ABXXXX10.1177/0003603X231201436The Antitrust BulletinHylton

research-article2023

1. The existence of a relatively low tenure hurdle is only part of the problem, as Cornel West suggested in his critique of legal

scholarship. See Cornel West, CLS and a Liberal Critic, 97 Yale l.J. 757, 768 (1988) (“Indeed, much of both the intellec-

tual creativity and theoretical mediocrity of CLS thinkers is due, in large part, to the self-taught character of these thinkers.

This character is accentuated by the process by which law students become law professors – a process that provides little

time for serious and sustained reflection and research prior to appointment.”).