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Cardozo Law Review

Abstract

For four decades, there was a near-universal consensus that consumer welfare was the sole and appropriate purpose of antitrust law. That consensus is breaking apart. For the first time in two generations, a growing group of scholars and policymakers is challenging that orthodoxy. They reject the consumer welfare consensus, and argue that antimonopoly policy should and can have much broader social goals, and serve democratic ends, not merely efficiency ones.

This group is unified by its shared protest, but lacks a shared positive platform. It does not itself have a consensus on what goals should replace the monotheistic approach of the last generation of thinkers. It is, rather, a collection of people with a shared rejection of consumer welfare. This means that one of the most interesting and important theoretical challenges for antitrust is fleshing out the goals.

In this Paper, I argue that one of the goals of antitrust laws should be the cultivation of freedom, and the impact on us as citizens. Society can be structured in a way to support civic, imaginative, public-facing individuals, with developed moral faculties: antitrust policy, along with education policy, public support for libraries and arts, and election law, one of the key mechanisms for creating those supports.

This view is recurrent throughout history, but has been neglected and rejected in the last few generations. Both modern liberals and modern republican theorists have given short shrift to the moral and civic development that is made possible by a more decentralized market. This dismissiveness marks a sharp break from the past. Liberal, republican, and libertarian scholars assumed the essential role of the decentralized power; small and medium-sized businesses, trade associations, private-sector unions. To be fair, republican theory was historically split between those like Rousseau (who disdained markets as a necessary evil) and those like Adam Smith (who saw them as integral to moral life). It has now shifted to a tendency to treat commercial activity, however structured, as amoral at best. Instead of investigating market structure as a possible mode of enabling freedom, modern republicans like Sandel tend to treat markets like a tolerable infectious disease that should be contained. The more modern corporate social responsibility scholarship, where one might expect to see some exploration of these topics, is dominated by Panglossians who believe that moral choices have essentially no economic cost, and is in a state of confusion regarding the status of freedom in business ethics.

I argue that one of the purposes of antitrust law should be the distribution of moral space throughout the economic community. This moral space creates the possibility for moral action, for more moral discussion and debate, for more social community in which moral questions are debated, and for character development of individuals and civic development of the culture. Highly concentrated moral space, held only by a few managers and directors in large multinational companies, is less likely to be exercised freely in pursuit of the public good than more distributed moral space. In short, there is a complex, dynamic interaction between the distribution of economic discretion and the collective moral experience of a society.

Disciplines

Contracts | Jurisprudence | Law

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