Reactionary Antitrust

Abstract

Antitrust is undergoing a renaissance. New voices have emerged. Issues long considered settled have been opened for re-examination. Lively debate has prompted antitrust stakeholders to re-evaluate familiar concepts like "consumer welfare." Some have welcomed this opportunity for self-reflection. But it has also been greeted with a different set of responses that seem more likely to stifle debate than to encourage it. These include charges of "populism," fallacious criticisms, and a refusal to engage with the core arguments of the new progressives, who are labeled as "Hipster Antitrust." What has been lacking thus far is an equivalent label for the anti-progressive end of the ideological spectrum. In a 2019 essay, Professor Herbert Hovenkamp distinguished between the new antitrust movement and the "reactionary" response to it. This essay adopts that label to discuss "Reactionary Antitrust." Reactionary Antitrust is a grouping of flawed arguments unlikely to encourage debate. These arguments include disparagement of progressives as "political" and "populist," the imposition of impossible burdens of proof as barriers to reform, and erecting straw-man versions of actual positions. This essay urges an end to Reactionary Antitrust. Instead of seeking to bury the new critical movement, antitrust should welcome these new voices and the renewed intellectual ferment they have inspired. Given the current tone of antitrust debates, a few further words of caution may be needed at the outset. This essay is emphatically not a critique of entire articles or schools of thought, and certainly not of particular authors. Instead, it identifies and responds directly to particular arguments. Antitrust discourse has had a somewhat long and worrisome history of attempting to associate particular individuals with one camp or another, instead of engaging with those individuals' actual positions. This essay is, in part, also a call to return to the highest and best form of scholarly enterprise: to put forward claims and to respond to the claims of others.