Will Antitrust Become Progressive?

Will Antitrust Become Progressive?

Herbert Hovenkamp

University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School

Abstract

Populism has staked its claim in American antitrust policy. While it has not yet significantly influenced the federal judiciary, it does have a presence in the antitrust enforcement Agencies. At this point, however, the populist antimonopoly movement has provided few new ideas. Rather, it has exhumed discarded policies, such as moving merger law back to the 1960s, reviving the Robinson-Patman Act of the 1930s-1970s, reinstating aggressive per se rules against vertical restraints that were in force in the 1960s and 1970s, disinterring concentrated industry proposals from the 1960s,and even returning antitrust policy to some imagined former state that was ignorant of economics.

This movement needs to evolve if it is to survive. While antitrust needs to become more pro-enforcement, it can accomplish that without nostalgic and reactionary returns to an imagined past. Increases in enforcement should be empirically justified, with a focus on practices that provably reduce output and increase price, reduce product quality, or restrain innovation. Populism stands as a significant obstruction to achieving those goals, which requires embracing new realities, not clinging to old ones. When the current anti-monopoly movement makes that move, it will have become progressive.