Inhospitable Antitrust, Lost and Found

Presenter: Dr Andrew McLean, Edinburgh Law School.

This article addresses the tradition of inhospitality towards concentrations of economic power found in American antitrust law. Antitrust was first introduced in the United States in opposition to the control of industry by trusts in the latter part of the nineteenth century. Owing to the many harms associated with concentrated private power, antitrust sought to disperse such concentrations in the service of various economic, social and political goals. Inhospitable antitrust was lost in the late 1980s, however, when the discipline underwent a ‘modernisation’ process and became centred on the pursuit of consumer welfare. Rejecting inhospitality, modern antitrust valorises concentrated economic power due to the efficiencies and low prices that large companies allegedly deliver to consumers. Inhospitable antitrust became an anathema under the consumer welfare standard. Yet, with renewed concerns about monopoly power emerging since the global financial crisis, inhospitable antitrust is starting to return. This article examines the factors underlying the reappearance of inhospitable antitrust, notes the inroads that have been made in restoring inhospitality, and highlights the challenges involved in this task. Normatively, the article argues that antitrust should be inhospitable towards concentrations of economic power, and equally, that the modern embrace of monopoly is misguided.

The presentation will be between 4:45 and 5:15 pm, followed by discussion. Refreshments will be ready by 4:30 pm.

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