Wednesday, April 24, 2013

Antitrust Law as Public Interest Law

Posted by D. Daniel Sokol

Christopher R. Leslie, University of California, Irvine School of Law explains Antitrust Law as Public Interest Law.

ABSTRACT: Definitions of “public interest” abound. One could make the case for antitrust law as public interest law using political or economic arguments. For some, one’s definition of the public interest reflects one’s political viewpoint. To avoid the risk of using a loaded description of public interest, the Essay will employ a narrow conception of public interest: providing access to affordable food and medicine. With this principle as my guide, this Essay reviews some of the ways that antitrust law helps make food and medicine more accessible to the public.

Antitrust law is the law of competition. Competition in the marketplace generally improves the lives of consumers by expanding output and reducing the price of products and services, as well as by increasing quality and innovation. Monopolies and cartels distort competitive markets by reducing output in order to create artificial scarcity, which allows sellers to raise prices. As a result, some consumers will not be able to acquire the product or service at all because of the contrived shortages. Those consumers who continue to purchase the product or service are forced to pay elevated prices. Thus, all consumers are made worse off.

Antitrust law provides the legal rules for free market economies. At first glance, antitrust law may not seem like public interest law. In antitrust litigation, economists define markets using economic concepts like cross-elasticity of demand and cross-elasticity of supply; they debate issues of marginal cost versus average variable cost, and which costs are, in fact, variable. As antitrust law has come to rely more on economics, it has become less populist. Looking past the economic concepts and jargon, however, one discovers a body of law devoted to the public interest. This Essay is anecdotal by design; it is intended to give a sense of the many ways that anticompetitive behavior can distort access to food and healthcare.

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