Overview

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CHAPTER I

OVERVIEW

James A. Wilson



A. Competition As Public Policy

Competition is a public policy value inherent in the work of antitrust

lawyers, but its worth is more often assumed than analyzed by the bar.1

Outside the competition bar, the premise that competition is good public

policy is not universally accepted. As put b luntly by one critic: ―R ats

and roaches live by competition under the laws of supply and demand; it

is the privilege of human beings to live under the laws of justice and

mercy.‖2 At a less extreme and more practical level, in the United States

and elsewhere, competition vies with regulation, government aid, and

various other concerns as a governing principle. Illustrating this tension,

a recent headline in the New York Times read: ―Antitrust Chief Hits

Resistance in Cra ckdown,‖ and indicated t hat the U.S. Department of

Justice Antitrust Division (DOJ) has faced opposition from sectoral

regulators such as the Department of Transportation in seeking enhanced

antitrust enforcement.3

In the face of the economic crisis of 2008, even some of the most

vigorous advocates of competition and free markets have admitted

doubts as to the effectiveness of these policies. Richard Posner, the

archetypal Chicago school lawyer and judge, published a book entitled A

Failur e of Capitalism: The Crisis of ‗08 and the Descent into

 Partner, Vorys, Seymour, and Pease, LLP. Mr. Wilson was the Chair of

the American Bar Association Antitrust Section from 2008 to 2009.

1. For example, while the Long Range Plan of the American Bar

Association Section of Antitrust Law identifies as one of the Section‘s

nine missions ―[a]dvocating sensible competition principles as a

fundamental underpinning of public policy and legislation,‖ it does not

further define or clarify this aspect of the Section‘s mission.

2. WENDELL BERRY, Economy a nd Plea sure, in WHAT ARE PEOPLE FOR?

135 (1990).

3. Stephen Labaton, Antitrust Chief Hits Resistance in Crackdown, N.Y.

TIMES, July 26, 2009, at A1.

2 Competition as Public Policy

Depression.4 Alan Greenspan, in testifying before the House Committee

on Oversight and Government Reform, confessed that he had concluded

the model underlying his free market ideology was imperfect, stating that

―yes, I found a flaw, I don‘t know how significant or permanent it is, but

I have been very distressed by that fact.‖5

B. The Symposium

The idea of a symposium to explore competition as a public policy

value arose before the economic crisis of 2008. However, the planning

of the symposium occurred in the midst of that crisis, and the doubts then

being expressed as to the vitality of competition as a public policy value.

The Task Force that organized the symposium6 concluded that the

vitality of competition as a public policy value needed to be explored

from a variety of perspectives, which was reflected in the structure of the

program. The symposium began with a keynote address by William

Lewis, former head of the McKinsey Global Institute and author of The

Power of Productivity,7 addressing the broad question of whether and

why competition remains an important public policy value. The program

was then divided into a series of panels addressing the issue of

competition as a public policy value from a variety of perspectives:

 A historical overview of the role of competition in public policy

in the United States

 Deregulation and the legacy costs of market regulation

 The financial crisis: market failure or regulatory failure?

4. Richard Posner, A Failure of Capitalism: The Crisis of ‗08 and the

Descent into Depression (2009).

5. Edmund L. Andrews, Greenspan Concedes Error on Regulation, N.Y.

TIMES, Oct. 24, 2008, at B1.

6. The Task Force was chaired by Deborah Platt Majoras and John

Shenefield. Its members were Melanie Aitken, Dennis Carlton, Edward

D. Cavanagh, Jonathan Jacobson, Bernard A. Nigro, Maureen K.

Ohlhausen, Robert Pratt, Robert Schlossberg, Joseph Simons, and Joshua

H. Soven.

7 . WILLIAM W. LEWIS, THE POWER OF PRODUCTIVITY: WEALTH, POVERTY,

AND THE THREAT T O GLOBAL STABILITY (2004). A synopsis of this book

is available on the McKinsey Quarterly website. See William W. Lewis,

The Power of Pr oductivity: Poor Countries Should Put Their Consumers

First, MCKINSEY QUARTERLY, May 2004, a vaila ble a t http://www.

mckinseyquarterly.com/Public_%20Sector/Economic_Policy/The_power

_of_productivity_1423.