Tuesday, February 26, 2013
A Traditional and Textualist Analysis of the Goals of Antitrust: Efficiency, Preventing Theft from Consumers, and Consumer Choice
Posted by D. Daniel Sokol
Bob Lande (University of Baltimore) offers A Traditional and Textualist Analysis of the Goals of Antitrust: Efficiency, Preventing Theft from Consumers, and Consumer Choice.
ABSTRACT: This article determines the overall purpose of the Antitrust statutes in two very different ways. First, it performs a traditional analysis of the legislative history of the Antitrust laws by analyzing relevant legislative debates and committee reports. Second, it undertakes a textualist or "plain meaning" determination of the purpose of the Antitrust statutes, using Justice Scalia's methodology. It does this by analyzing the meaning of key terms as they were used in contemporary dictionaries, legal treatises, common law cases, and the earliest U.S. Antitrust cases, and it does this in light of the history of the times.
Both approaches demonstrate that the overriding purpose of the Antitrust statutes is to prevent firms from stealing from consumers by charging them supracompetitive prices. When firms use their market power to raise prices to supracompetitive levels, consumers pay more for their goods and services, and these overcharges constitute a taking of consumers' property. Economic efficiency was only a secondary concern. In addition, the textualist approach leads to the surprising conclusion that neither the Sherman Act nor the Clayton Act contain an exception for monopolies attained through efficient business conduct. The Antitrust laws are supposed to prevent and condemn all privately created monopolies.