Commentators have made much sport, here and elsewhere, of evaluating recent proposed antitrust reforms for their likely economic effects. As commentators like George Priest, Doug Melamed and Nicolas Petit, and others have pointed out there is much to be concerned about in the economic understandings underlying recent proposals. I think many of these concerns are valid or, at least, that they haven’t been adequately responded to by reformers, and I look forward to seeing those responses in the days to come.
My point here is to suggest that many of the criticisms of reform might be missing the central point of reforms: that their primary implications are not economic, they are political. The effects we should be worried about are not the effects on efficiency or output but on the relative power of regulators and markets.
Although dominated by economic analysis (some would say since Justice Brandeis’s opinion in Chicago Board of Trade), antitrust law has always been about allocating control over markets between the public and the private. Antitrust laws are forms of commercial regulation that have always had a political cast.
Citation
Thomas B. Nachbar, An America Fit for the Digital Age?, Network Law Review (May 2, 2022).