Genesis
Response
Penultimate
Finale
November 24th, 2021
Professor Epstein raises an important point: “It is common for many people to echo the recent claim of President Biden in his executive order on competition policy that the antitrust laws should promote the virtue of ‘democratic accountability.’” The political antitrust (or Neo-Brandeisian) movement has clamored for decades about how “anti-monopoly” is “pro-democracy”, with the implication being that anyone who objects to their views is “pro-monopoly,” and therefore also “anti-democracy.” This terminology is unserious and dangerously misleading.
Recently, the FTC has taken steps to systematically tear down procedural guardrails, dismantle the merger review process, and insert a wide array of unrelated objectives into the Draft FTC Strategic Plan that are nowhere to be found in the underlying authorizing statute. All of these actions – along with other significant changes and attempts to evade opposition – were effected along party lines, with limited opportunity for public input, and without allowing dialogue among the commissioners during public meetings.
Obstruction of public input is obviously not conducive to legitimate exercises in democratic processes, and while transparency is a laudable goal the only thing the Commission’s majority has been transparent about is that opposing viewpoints are no obstacle to expediently implementing an agenda. Radical ideas may be fun, but now that the “pro-democracy” antitrust reform movement is in charge of an agency, it is being run in a way that is far from democratic. Eventually, no one will believe that the political antitrust movement is pro-democracy, if they ever did.
Turning to the judiciary, I’d like to note that Senator Klobuchar and others often try to pin the blame for the supposed “monopoly problem” on alleged activism by the federal judiciary, which they accuse of inventing pro-consumer antitrust standards that make enforcement more difficult. However, when courts provide the missing details and definitions, that is statutory interpretation, not judicial activism. As Justice Amy Coney Barrett noted in her confirmation hearing: “The text of the Sherman Act, as the court has determined over time, essentially permits the court to develop a common law.” Moreover, the claim that ideological activism is at work is belied by the fact that a large percentage of these antitrust cases have been decided by a supermajority of six or more justices.
Instead, a tendency towards judicial activism can be found on the other side of the debate. Witness the near-complete overlap between proponents of neo-Brandeisian antitrust policy and common good originalism, which rejects the Constitution’s original public meaning in favor of constitutional interpretation “based on the principles that government helps … the common good." Proponents of a political approach to antitrust favor results-oriented jurisprudence or, at very least, the coupling of the approaches can be explained by a rejection of neutral, predictable frameworks that stand in the way of achieving "justice."
Decades of both economic learning and efforts to restore a constitutionalist judiciary are at stake in the current antitrust debate. While there are plenty of problems with Big Tech, attempting to turn antitrust law into a jack-of-all trades is a bad idea that risks improper application of the law and undercuts future cases of legitimate enforcement. Instead, advocates of antitrust reform need to identify both the specific problems they seek to fix and the appropriate body of law from which to draw a legal remedy. In many cases, the answer will not be antitrust.
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