Do Property Rights Justify Collusive Wealth Transfers? A Commentary on White’s “Justification”

• DOI: 10.1177/0003603X16646574
• Published date: 01 June 2016
• Author: Alan M. Barr
• Date: 01 June 2016

Article

Do Property Rights Justify

Collusive Wealth Transfers?

A Commentary on White’s

‘‘Justification’’

Alan M. Barr*

Professor White views antitrust from the prospective of ‘‘property rights and corrective justice.’’

1

Antitrust, says White, draws heavily from utilitarianism, ‘‘the school of ethics that maintains that the

right action to be taken is the one that produces the greatest amount of utility for the greatest number of

people.’’

2

Professor White argues that this approach is misguided. Instead, individual and property

rights should trump antitrust utilitarianism.

Professor White contends that antitrust ignores the right of people to control their property. White’s

rights-based approach says that government exists to promote the rights of people to pursue their own

interests. Government should only interfere with the pursuit of self-interest to protect rights of others

(free speech, etc.) and address ‘‘wrongful’’ harms (defects, fraud, etc.). Government should not

interfere with ‘‘nonwrongful’’ choices individuals make in their own interests. Of course, many actions

of businesses harm consumers, like unilateral price increases, changing products, and discontinuing

products. However, these harms are not wrongful. They do not violate recognized rights of consumers,

so government should provide no consumer remedy. White emphasizes that, if government cannot

identify a right violated by a businessperson’ s conduct, government cannot damn the conduct as

wrongful. Antitrust imposes an obligation to maximize welfare that violates his concept of individual

property rights.

I disagree with Professor White’s overbroad contention that antitrust exists to protect consumers

at the expense of businesses. In addition to protecting consumers, the antitrust laws preserve broad

rights of businesses to chart their own courses, subject only to the limits set forth in the antitrust

laws.

3

For example, save for the rare monopoly, businesses can freely (and unilaterally) decide to

raise their prices.

*Former Assistant Attorney General for the State of Maryland and Deputy Chief, Antitrust Division, USA

Corresponding Author:

Alan M. Barr, 7713 Matthias Street, Philadelphia, PA 19128, USA.

Email: barra@philau.edu

1. Mark D. White, On the Justification of Antitrust: A Matter of Rights and Wrongs,ANTITRUST BULL. (2016, this issue).

2. Id.

3. 15 U.S. §§ 1 et seq.

The Antitrust Bulletin

2016, Vol. 61(2) 342-345

ªThe Author(s) 2016

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DOI: 10.1177/0003603X16646574

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