Confessions of a Nonbeliever: Comments on the Search for Antitrust’s Normative Foundations

• Published date: 01 December 2023
• DOI: http://doi.org/10.1177/0003603X231201435
• Author: Jeffrey L. Harrison
• Date: 01 December 2023
• Subject Matter: Articles

https://doi.org/10.1177/0003603X231201435

The Antitrust Bulletin

2023, Vol. 68(4) 590 –602

© The Author(s) 2023

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DOI: 10.1177/0003603X231201435

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Article

Confessions of a Nonbeliever:

Comments on the Search for

Antitrust’s Normative Foundations

Jeffrey L. Harrison*

Abstract

Richard Markovits’ Welfare Economics and Antitrust Policy is, without a doubt, the most expansive and

thoughtful effort to assess antitrust policy from the point of view of welfare economics. Unfortunately,

I cannot comment in a meaningful way on the specifics of his analysis because after teaching antitrust

for 30 years, I have become a nonbeliever. I do not believe any interpretation of today’s general

antitrust policies, or the economics on which they are based, can be reconciled with any known

version of “welfare.” The principal reason for this state of affairs is that antitrust scholars and

courts cling to goals that are misguided and theories that have not evolved despite an avalanche of

information now available that strongly suggests, if not proves, that there is little connection between

standard antitrust goals and welfare. Thus, with great reluctance, I question whether the analysis

found in Richard’s Welfare Economics and Antitrust Policy is worth the effort or ultimately gets us

anywhere. My inkling is that Richard realizes this too.

Keywords

efficiency, externalties, preferences, welfare, utility

I. Introduction

Richard Markovits’ Welfare Economics and Antitrust Policy is, without a doubt, the most expansive

and thoughtful effort to assess antitrust policy from the point of view of welfare economics.

Unfortunately, I cannot comment in a meaningful way on the specifics of his analysis because after

teaching antitrust for 30 years, I have become a nonbeliever. I do not believe any interpretation of

today’s general antitrust policies, or the economics on which they are based, can be reconciled with any

known version of “welfare.” In other words, if antitrust policy as we know it were the “here” on a map

and welfare—in any of its forms—were the “there,” you cannot get there from here.1 The principal

*University of Florida Levin College of Law, Gainesville, FL, USA

Corresponding Author:

Jeffrey L. Harrison, Huber C. Hurst Eminent Scholar Emeritus, University of Florida Levin College of Law, Gainesville, FL,

USA.

Email: harrisonj@law.ufl.edu

1201435ABXXXX10.1177/0003603X231201435The Antitrust BulletinHarrison

research-article2023

1. I must also admit that I am not convinced a “there” exists, See Jeffrey L. Harrison, Happiness, Efficiency, and Decisional

Equity: From Outcome to Process, 36 PePP. L. Rev. 935, 942–46 (2009).