Monday, April 16, 2018
Joseph Coniglio, Wilson Sonsini Goodrich & Rosati has written on Antitrust and Economic Liberty: A Policy Shift from the Trump Administration?
ABSTRACT: In both the Department of Justice (DOJ) and the Federal Trade Commission (FTC), antitrust policy appears to be increasingly associated with economic liberty. Indeed, Assistant Attorney General (AAG) Makan Delrahim has stated that “[w]hen competition policy works well, it maintains economic liberty and leaves decision-making to the markets.” This short article discusses several different meanings of “economic liberty,” and considers the possibility of a Hayek-inspired theory of negative liberty of subsidiary importance to consumer welfare as a policy paradigm for the Trump Administration. Any inclusion of negative economic liberty into antitrust law’s policy goals, however, may strain to find support in either existing antitrust precedent or the Constitution—resulting in a possible tension with general rule of law principles.