Introduction

• Author: Terry Calvani,Justin Stewart-Teitelbaum
• Published date: 01 June 2020
• DOI: 10.1177/0003603X20912874
• Date: 01 June 2020

Article

Introduction

Terry Calvani* and Justin Stewart-Teitelbaum**

This symposium issue of The Antitrust Bulletin focuses on the utilization of public policy objectives

1

as goals of competition law. The topics discussed in this collection are important;

2

no other set of

current issues commands the same amount of attention within the competition law community.

The inboxes of journal editors are filled with submissions on the subject, it is a common topic on

academic and continuing legal education programs, and it is often the focus of op-ed pieces. Impor-

tantly, it is not just a topic of debate and discussion. The subject has significant currency in the U.S.

political arena, with prominent politicians urging legislative action. It is an important subject not only

in the United States but internationally as well.

Whether competition law policy is on the right track is a more important topic than it has been

in decades. A very significant aspect of the current discussion is the push by some (who generally

identify themselves as “progressives”) to foster a new antitrust agenda

3

—one that rejects what is

perceived to be a myopic fascination with consumer welfare

4

and the “Chicago School” of

* Brunswick Group LLC, Washington, DC, USA

** Freshfields Bruckhaus Deringer US LLP, Washington, DC, USA

Corresponding Author:

Terry Calvani,Senior Advisor, Brunswick Group LLC,600 Massachusetts Avenue, NW, Suite350, Washington, DC 20001, USA.

Email: tcalvani@brunswickgroup.com

1. “Public policy objectives” is not a defined term of art. Most commentators, including ourselves, use the term to refer to

objectives other than economic efficiency. These would include employee welfare, environmental protection, domestic

control of national production, and so on.

2. Although one might include national security issues within the ambit of public policy considerations generally, we do not.

The issues peculiar to national security are sufficiently different from those generally addressed under the antitrust public

policy rubric that their inclusion here would greatly expand the girth of the volume and likely tax the patience of the reader.

That said, the definition of a national security interest is admittedly murky. Foreign investment review is a good example of

a blurry line between national security review and industrial planning. Thus, reasonable people can differ as to what ought to

be included in this discussion.

3. Care must be taken to distinguish between critiques of competition law by progressives that are grounded in economics, and

which argue that current policy is, and has been, misguided and those which advocate objectives grounded on populist

objectives. This symposium focuses on the latter. The current debate about whether there has been a failure to appreciate the

potential adverse competitive effects of acquisitions that can occur as a result of passive ownership is a good example of the

former. See Einer Elhauge, Horizontal Shareholding, 129 HARV.L.REV. 1267, 1305 (2016). Economics is a dynamic

discipline and one should expect to see critiques of past work, including that emanating from the “Windy City.” Whether

critiques of this variety will endure as lasting contributions remains to be seen, but they are to be expected and should be

welcomed. For a compilation of such essays, see generally Robert Pitofsky, Introduction: Setting the Stage,in HOW THE

CHICAGO SCHOOL OVERSHOT THE MARK:THE EFFECT OF CONSERVATIVE ECONOMIC ANALYSIS ON U.S. ANTITRUST 1–5 (Robert

Pitofsky ed., 2008); see also Joshua D. Wright, Overshot the Mark: A Simple Explanation of the Chicago School’s Influence

on Antitrust,5COMPETITION POL’YINT’L1, 1–14 (critiquing the Pitofsky volume).

4. See RICHARD A. POSNER,ANTITRUST LAW:ANECONOMIC PERSPECTIVE 8–18 (1976) (discussing efficiency as the underlying

predicate for competition policy). This is sometimes loosely referred to as the “welfare” standard, but we recognize that the

The Antitrust Bulletin

2020, Vol. 65(2) 199-207

ªThe Author(s) 2020

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DOI: 10.1177/0003603X20912874

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