Ideological cycles and unstable antitrust rules

• Author: Donald I. Baker,William Blumenthal
• DOI: 10.1177/0003603X8603100203
• Date: 01 June 1986
• Published date: 01 June 1986
• Subject Matter: Article

The Antitrust Bulletin/Summer 1986

Ideological cycles and

unstable antitrust rules

BY

DONALD

LBAKER

and

WILLIAM

BLUMENTHAL

*

323

Whatever else may be said for the future

of

antitrust, one

prediction leaps from the historical record: populist sentiment

will ebb and flow in the years ahead, as it has since the founding

of

the republic. Populism may be out

of

vogue among enforce-

ment authorities at the moment, but it has been out

of

vogue

before, only to resurge.

The relative merits

of

populism and other ideologies as a basis

for antitrust law have been addressed at length elsewhere, Iand we

do not propose to revisit the debate here. 2As a practical matter,

The

authors

practice law with Sutherland, Asbill &

Brennan,

Washington, D.C.

See, e.g., Bork &Bowman, Blake &

Jones,

The Goals

of

Antitrust: A Dialogue on Policy, 65

COLUM.

L.

REV.

363 (1965);

Antitrust Jurisprudence: A Symposium on the Economic, Political and

Social Goals

of

Antitrust Policy, 125 U. PA. L.

REV.

1182 (1977);

Pitofsky, The Political Content

of

Antitrust, 127 U. PA. L.

REV.

1051

(1979); Fox, The Modernization

of

Antitrust: A New Equilibrium, 66

CORNELL

L.

REV.

1140 (1983).

2Suffice it to say

that

we are not populist in outlook. While we

recognize

the

populist underpinnings

of

antitrust

policy as a historical

matter, we have previously allied ourselves with those who

argue

that

the

current

state

of

knowledge in the social sciences does

not

enable

social

and

political goals to be reduced to clear rules

of

law.

Economic

, 1986 by Federal Legal Publlcarions,

11l~.

324 The antitrust bulletin

given the cycle

of

populist sentiment, the debate is unwinable,

and proponents

of

all views are likely to be successively satisfied

and dissatisfied and satisfied and dissatisfied

...

(or vice versa)

as public policy marches onward.

Our concern here is with the cycle itself and its ramifications

for clear, certain, predictable rules

of

law. Businessmen cannot

effectively structure their affairs and plan for the future if

antitrust policy repeatedly caroms

off

ideological poles. This does

not mean that policy must be stagnant: gradual, moderated

policy movement supported by a broad consensus (and thus less

susceptible to sharp reversal) poses little problem. Ideological

revolutions, by contrast, invite ideological

counterrevolutions-

with the business community caught in the cross fire.

I.

Two broad, often conflicting themes pervade antitrust doc-

trine. The first, "competition based on efficiency,"> is fundamen-

tally an economic concept.

It

emphasizes market performance

without regard to the identity

of

market participants.' The second

theme, entrepreneurial independence and equality, reflects an

interest in non-economic (or at least non-efficiency) values.'

It

goals, by contrast, have been framed in a reasonably accessible (al-

though imperfect) decision calculus. See, e.g., Baker &Blumenthal, The

1982 Guidelines and Preexisting Law, 71

CALIF.

L.

REV.

311 (1983);

Mergers and Economic Concentration: Hearings on S.600 Before the

Subcomm. on Antitrust, Monopoly and Business Rights

of

the Senate

Comm. on the Judiciary, 96th Cong., 1st Sess., pt. 2, at 34 (1979)

(statement of Donald

I.

Baker).

3See, e.g., Connell Construction Co. v. Plumbers &Steamfitters

Local Union 100,421 U.S. 616, 623 (1975).

4See, e.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429

U.S. 477, 488 (1977) (antitrust laws enacted for "the protection of

competition, not competitors"); Brown Shoe Co. v. United States, 370

U.S. 294, 320 (1962) (same).

5See, e.g., Brown Shoe, 370 U.S. at 316 ("fear not only of

accelerated concentration of economic power on economic grounds, but