Thursday, December 7, 2023
Antitrust law is more contested than ever. The recent push by the Biden Administration to re-orient antitrust towards justice and fairness considerations is leading to public backlash, judicial resistance and piecemeal doctrinal developments. The methodological hegemony of welfare maximizing moves in antitrust makes it theoretically fragile and maladaptive to change. To bridge disagreements and overcome polarization, this Article revisits John Rawls’ foundational work on political and economic justice, arguing that it can facilitate consensus and inform the present and future of antitrust law.
John Rawls’ work on justice can help re-orient antitrust law in four ways. First, it provides a common language of justice that enables various “camps” of thinkers and activists find common ground on the relation between antitrust’s economic mission and its implications for political justice. Second, it helps recalibrate the balance between utilitarian moves that emphasize welfare maximization on the one hand and deontological or structural justice considerations on the other. Third, and related, Rawls guides our thinking on the relationship between justice, efficiency and welfare, showing us that attempts at separating antitrust law’s mission from its impact on liberty, equality and fairness violates basic moral intuitions. Fourth, Rawls’ late work on political economy, particularly notions of property-owning democracy and liberal democratic socialism, can help situate antitrust law within broader policy thinking on economic justice.
Rawls’ work highlights that antitrust has a justice function, and that such function has two basic dimensions: a structural dimension, to structure and constrain market dynamics so as to enable free and fair exchanges compatible with justice; and a corrective dimension, to rectify the creation of large inequalities or excessive concentrations of power and re-diffuse and decentralize power adaptively. An investigation into the Rawlsian roots of antitrust law suggests three avenues for reform: (1) enhancing publicity and democratizing antitrust law and procedures; (2) promoting commercial reciprocity through structural and corrective mechanisms; and (3) situating antitrust law within a broader constellation of regulatory tools.