Published date01 March 2018
Date01 March 2018
Subject MatterArticles
Chris Sagers*
Institutions matter in antitrust, at least as much as ideas. Most antitrust arguments, and especially the
contretemps currently enjoying some attention in the popular press, imagine that antitrust problems
are short- or medium-term matters, and that they can be corrected with local doctrinal steps. I suggest
there is a deeper problem, a phenomenon more deeply inherent in the nature of competition itself.
The problem will cyclically recur, so long as institutional brakes are unavailable to keep it at bay.
Specifically, it seems that competitive markets are difficult to preserve without some prospective, no-
fault rule to control concentration for its own sake. At least nominally, American antitrust has such a
rule in its basic merger law, Clayton Act § 7, but the rest of it consists of retrospective, fault-based, law-
enforcement rules that in their application are by nature somewhat piecemeal. A prospective con-
centration rule is needed because once markets become concentrated, situations are common in
which neither disciplinary new entry nor retrospective conduct remedies can restore competition.
The deeper problem inherent in competition policy, which demonstrates the significance of institu-
tions as well as ideas, is that such a rule is also most difficult to enforce. That is so because markets in
their ordinary operation are confusing and contradictory to watch, and the hardest interventions for
government to defend to a skeptical public are those that are prospective. Finally, however, it so
happens that one institutional correction currently on the legislative agenda could conceivably do
some good in correcting for this problem—a specific plank in congressional Democrats’ “Better Deal”
monopoly problem, no-fault monopoly, deconcentration, merger, Clayton Act § 7, competition as
political compromise, a better deal, post-consummation merger review
The antitrust laws have not been effective in the real world. ...Unfortunately, all antitrust law enforcement
under any plan depends on the public attitude.
—Thurman Arnold, 1949
Cleveland-Marshall College of Law, Cleveland State University, Cleveland, OH, USA
Corresponding Author:
Chris Sagers, Cleveland-Marshall College of Law, Cleveland State University, 2121 Euclid Ave. LB 228, Cleveland, OH 44115,
Email: c.sagers@csuohio.edu
1. Thurman Arnold, Symposium, The Effectiveness of the Federal Antitrust Laws, 39 AM.ECON.REV. 690, 690 (1949).
The Antitrust Bulletin
2018, Vol. 63(1) 7-48
ªThe Author(s) 2018
Reprints and permission:
DOI: 10.1177/0003603X18756141
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
(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)
a misunderstanding that they and the press seem to have—their failure to grasp the issue of existential
gravity that did in fact face antitrust over the past year or two, which emphatically was not some
ideological sideshow over whether we follow a “consumer welfare” ideology, or reinstitute
“structuralism,” or any other detail of antitrust itself. It was the significance to antitrust of electing
any Democratic president in 2016, no matter whom. Conceivable differences among them are dwarfed
by changes that President Trump will likely impose in antitrust by way of his Supreme Court appoint-
ments. A lot of people in antitrust still seem not to have given that much thought, and, so, many of them
are still churning out debates about other things. I will spend some time on this, though it is tangential
to my main point, because it gets at something that is definitely not tangential. In antitrust, I submit,
institutions matter, and they matter at least as much as ideas. These issues will all be subjects of Part II.
All that said, though, the promising little antitrust component of the Better Deal that I will discuss
below seems to bear the fingerprints of that same little group. So what I’ll have to say about their work
will hardly all be critical.
But anyway, the real problem that I think still seems worth talking about is something else entirely.
This would-be New-New-Left-of-Antitrust and their abettors in the news media, the pending Supreme
Court calamity, and other essentially political matters are in my mind short- or medium-term phenom-
ena. The deeper problem I mean to discuss is long-term, and will persist even once daily realities are
resolved in a way more favorable to competition enforcement. The problem will be the main subject of
the article, and it is the topic of Part III.
Specifically, I will try to defend the following claim, which in some respects is a technical, doctrinal
matter of day-to-day antitrust administration, but in substance is at the heart of having a competition
policy at all. I believe that: (1) competition policy will not work without some sort of prospective, no-
fault rule to control concentration, of the kind that at least nominally we have in our merger law; but
also that (2) we do not now and are unlikely to have the political will in our country to apply such a rule
adequately and consistently. I con ceive this as much more than just a technical is sue of merger
administration. A very general but not mu ch discussed problem is whether our gove rnment may
legitimately manage concentration for its own sake, or whether it should remain agnostic about
concentration and merely police specific conduct.
Anyway, if it is true, as Arnold said, that competition enforcement depends on the public attitude,
then it won’t work on any long-term basis unless enough of the American public can understand and
support a consistent theory of market operation over a long period. I believe that for most of antitrust
history that condition has not been met, and the reason is simple. Despite our historic commitment as a
people to markets and individual enterprise, we don’t very often recall that markets in their ordinary
operation are machines for producing pain. A policy meant to make them vigorous is in tension with
both the individualism that pervades our cultural tradition (and thus it generates objection from the
right), and with our commitment to noneconomic values that seem jeopardized by vigorous compe-
tition (and hence objection from the left).
All this implies an interesting question, to which this essay is my own answer: How much is the
latter-day crisis or lull in antitrust really just a short- or medium-term phenomenon? If the real problem
in antitrust is the fundamental, political one that I’ve described, then I believe it is not short-term. It is a
challenge inherent in having any competition policy. But maybe I’m wrong and what really matters at
the moment are more immediate problems. Maybe the relative lack of antitrust vigor just reflects the
general conservative turn that among other things led to President Trump’s election, and to the
generally quiet few years of federal enforcement it seems likely to produce. That conservative turn
may not seem especially “short” term, since it’s arguably been under way for forty years or more,
Sagers 9

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