Monday, August 29, 2011
Posted by D. Daniel Sokol
Barak Orbach University of Arizona and Grace E. Campbell University of Arizona - James E. Rogers College of Law discuss The Antitrust Curse of Bigness.
ABSTRACT: In 1882 Standard Oil’s General Solicitor invented the corporate trusts that inspired the birth of the anti-trust discipline. The public aversion to trusts in the United States gave the field its enduring and uniquely American name. As the discipline matured, distrust of bigness took root in cases and doctrines. Justices Louis Brandeis and William Douglas wrote the narrative into early case law and it remained embedded in the field even as economics became the antitrust methodology—although economics transformed the fear from absolute size to relative size (market shares). While size should be an irrelevant consideration in antitrust analysis, it still mistakenly serves as a driving force behind the law. This Article studies how the fear of bigness—of absolute or relative size—has shaped and confused analytical perceptions of antitrust law. The American discipline might owe its birth to the fear of size, but this fear has been a burden and a curse on the development of sound antitrust policies.