Such a few years it has been in America. This symposium is hardly the only thing that seems different
than back when its editor first proposed it, more than a year ago. Since November 2016, antitrust
debate and pretty much everything else in American policy seem, at least to me, in an upside-down
limbo, in which it feels almost ridiculous to talk about day-to-day domestic affairs. Before then, “An
Introspective Examination of Antitrust Fundamentals” seemed a fitting enough place to talk over the
growing popular interest in America’s “monopoly problem,” and the promise some saw in a renewed
antitrust for this new Gilded Age,
or maybe for some more fundamental, Brandeisian retooling from
the ground up, as urged by a new coalition of mostly very young activists and think-tank personnel.
guess the time would also have been as good as any to revisit whether antitrust should serve
“noneconomic” goals, or which kind of error-cost is more important, or any of a dozen other
hugely-written-about “fundamentals” issues that have featured in symposia every few years for a
century or so. Now, as of late 2018, the hope of just preserving a stable status quo seems uncertain
enough that it’s hard to know what’s even worth talking about.
The problem I’ve chosen to write about still seems fruitful. It was evident before the election and I
think it will not go away even after this dark season is a memory. It is definitely “Introspective” and
“Fundamental.” I don’t believe it has received very extended discussion, though it expands on a point
that I take Professor William Kovacic to have made,
and it is an opportunity to consider some
intriguing theoretical work by Professor Jonathan Baker.
It also is an opportunity to consider one
of the brighter little glimmers of hope in a while, a specific plank in the midterm electoral platform
introduced this summer by congressional Democrats, which they call the “Better Deal,”
and its partial
implementation in a bill introduced by Senator Klobuchar.
As it happens, I will still spend some part of this essay talking about that little group of young
activists and think-tank personnel, who are hard to ignore because for the moment they have gotten a
lot of attention.
They matter here because the current period of popular interest in antitrust, for which
that group is partly responsible, is this article’s inspiration, if not exactly the happiest one. I’ll discuss
2. As initially proposed, the symposium was prompted by a provocative popular-media essay on these themes, Eduardo Porter,
With Competition in Tatters, the Rip of Inequality Widens,N.Y.T
IMES, July 13, 2016, at B1. For more on the rising popular
interest in antitrust and monopoly, see infra notes 26-27 and accompanying text.
3. This symposium initially included some of those folks, but they withdrew. For their views, see,e.g., Lina Khan & Sandeep
Vaheesan, Market Power and Inequality: The Antitrust Counterrevolution and Its Discontents,11H
4. Specifically, in William E. Kovacic, Failed Expectations: The Troubled Past and Uncertain Future of the Sherman Act as a
Tool for Deconcentration,74I
OWA L. REV. 1105 (1989). See infra notes 162 and accompanying text.
5. Jonathan B. Baker, Economics and Politics: Perspectives on the Goals and Future of Antitrust,81F
ORDHAM L. REV. 2175
(2013); Jonathan B. Baker, Preserving a Political Bargain: The Political Economy of the Non-Interventionist Challenge to
Monopolization Enforcement,76ANTITRUST L.J. 605 (2010); Jonathan B. Baker, Competition Policy as a Political Bargain,
73 ANTITRUST L.J. 483 (2006). See infra notes 197-99 and accompanying text.
6. See http://www.democraticleader.gov/abetterdeal/.
7. Merger Enforcement Improvement Act, S. 1811, 115th Cong., 1st Sess. (2017).
8. This is all pretty awkward, because to some degree I think it is important to begin discussing some criticisms of this group.
But the “group” is not organized in any formal way, so far as I am aware, and many of its members are very young. For all I
know it exists as a group only in the minds of journalists trying to make it into one. See,e.g., Zach Carter, Meet the Man Who
Is Changing Washington’s Ideas About Corporate Power,H
UFFINGTON POST (Sep. 2, 2016), http://www.huffingtonpost.com/
entry/barry-lynn-washington-corporations_us_57c8a6a7e4b0e60d31de6433; David Dayen, This Budding Movement Wants
to Smash Monopolies,THE NATION (Apr. 4, 2017), https://www.thenation.com/article/this-budding-m ovement-wants-to-
smash-monopolies/; Steven Pearlstein, Is Amazon Getting Too Big, WASH.POST (July 28, 2017), https://
story.html? utm_term¼.b7ccc3d25b67. Members said to belong to it are also quite varied in background, and most are young.
Moreover, because some of what I say will be critical, I want to be clear that many young people apparently affiliated with it
are producing works of very good scholarship. See,e.g., Sandeep Vaheesan, The Evolving Populisms of Antitrust, 93 NEB.L.
REV. 370 (2014).
8The Antitrust Bulletin 63(1)