on a false conception of the market and submerges the state construction of the economy. Third, it
depends on, and is informed by, false assumptions about business conduct. While the third falsehood
suggests an analytical renovation and better antitrust economics are sorely needed, the first two
falsehoods indicate that empirical improveme nts are necessary but not enough. These falsehoo ds
together undermine the entire enterprise and call for a fundamental remaking of the field of antitrust.
An antitrust that promotes an equitable economy and protects democratic institutions will be built
on very different foundations than the present antitrust system. First, it would recover and revive the
antimonopoly vision of the framers of the antitrust laws. Second, instead of naturalizing the market and
obscuring the state action on which it depends, it would recognize the state construction of the
economy and how every market requires rules of one type or another. In this light, effective antitrust
structures the economy to promote a more equitable distribution of power. Third, in place of devel-
oping doctrines and rules from deductive reasoning, it would use induction and careful study of firms
and institutions to formulate antitrust rules. These philosophical changes would represent a break with
forty years of antitrust policy and practice and be a paradigmatic shift undergirded by history, law, and
II. The False Reading of Congressional Intent
The Congresses that enacted the principal antitrust laws sought to control the economic and political
power of trusts and monopolies. They recognized that large corporations exercise power over con-
sumers, workers, farmers, suppliers, rivals, and citizens. Accordingly, they enacted the antitrust laws to
control corporate power writ large, not merely one manifestation of this private power.
Since the 1970s, however, the Supreme Court and the federal antitrust agencies have disregarded
this legislative history and substituted their own policy objectives for those of Congress. In lieu of the
economic and political goals announced by the legislature, the judiciary and executive branch have
interpreted the antitrust laws, in particular the Sherman Act, as a “consumer welfare prescription.”
They have reinterpreted the antitrust laws based on the false historical analysis of Robert Bork.
A. Congressional Goals in Enacting the Antitrust Laws
In enacting the Sherman, Clayton, and Federal Trade Commission Acts, Congress aimed to constrain
corporate power broadly. The drafters of these landmark statutes sought to restrict corporate power
over consumers, workers, suppliers, and rivals.
And they also targeted corporate clout in the political
system. Informed by republican ideology, they recognized that concentrated corporate power threat-
ened the maintenance of democratic governance.
Congress enacted the antitrust laws to protect consumers and sellers from the power of monopolies
and trusts. As Robert Lande has detailed, the framers of the principal antitrust laws wanted to protect
consumers from the tribute exacted by corporations with pricing power.
Monopolistic and cartelistic
prices were described as unjust wealth transfers and condemned as “robbery”
3. E.g., Christopher Grandy, Original Intent and the Sherman Antitrust Act: A Reexamination of the Consumer-Welfare
CON.HIST. 359 (1993); James May, Antitrust in the Formative Era: Political and Economic Theory in
Constitutional and Antitrust Analysis, 1880-1918,50O
H.ST. L.J. 257 (1989); John J. Flynn, The Reagan Administration’s
Antitrust Policy, “Original Intent” and the Legislative History of the Sherman Act,33A
NTITRUST BULL. 259 (1988).
4. David Millon, The Sherman Act and the Balance of Power,61S.CAL.L.REV. 1219 (1988).
5. Robert H. La nde, Wealth Transfer s as the Original and Prima ry Concern of Antitrust: T he Efficiency Interp retation
ASTINGS L.J. 65 (1982).
6. 21 CONG.REC. 2614 (1890) (statement of Rep. Coke); id. at 4103 (statement of Rep. Fithian).
7. 51 CONG.REC. 13223 (1914).
480 The Antitrust Bulletin 64(4)