Antitrust is having a moment. Commentators and policymakers, both progressive and conservative, are calling for increased antitrust enforcement to address all manner of social ills. From technology platforms' power over speech and encroachments on user privacy to wage stagnation in more concentrated labor markets, to competition softening from ever-larger index funds, to growing income inequality, reduced innovation, and threats to democracy itself - the list of maladies for which antitrust has been proposed as a remedy goes on and on.
This Article revisits The Limits of Antitrust in light of the current antitrust moment. Part I describes the central components of Easterbrook's 1984 proposal and considers, for each, whether and how it should be revised in light of subsequent market developments and advances in economic learning. Part I concludes that Easterbrook's overarching prescription for maximizing antitrust's effectiveness remains fundamentally sound but that his view about the relative harms from overand under-enforcement, as well as some of the specific screening mechanisms he proposed for optimizing antitrust's effectiveness, require some adjustment. Part II then builds upon Easterbrook's approach by proposing four new screening mechanisms that could assist twenty-first century courts and enforcers in ensuring that antitrust secures as much social welfare as possible, given its intrinsic limitations. The proposed screening mechanisms would limit antitrust intervention to situations in which the complained of conduct (1) causes or threatens harm to consumers, (2) extends market power, (3) is unlikely to be addressed by other bodies of law or privately ordered solutions, and (4) does not involve a remedy requiring a great deal of information or endowing government officials with substantial discretionary authority.
Thomas A. Lambert,
The Limits of Antitrust in the 21st Century, 68 University of Kansas Law Review 1097
Available at: https://scholarship.law.missouri.edu/facpubs/976