Whatever Did Happen to the Antitrust Movement?

Herbert Hovenkamp*

Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasingly political calls for a new antitrust “movement.” The goals of this movement have been variously defined as combatting industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, controlling high profits, increasing wages, or protecting small business. None of those goals is new.¹ They have appeared and reappeared in the history of United States antitrust policy. Among the articulated goals of movement antitrust, low consumer prices often go unmentioned.²

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*James G. Dinan University Professor, University of Pennsylvania Law School and the Wharton School.

1 For example, the history of anticoncentration rhetoric is voluminous and more than a century old. See William E. Kovacic, Failed Expectations: The Troubled Past and Uncertain Future of the Sherman Act as a Tool for Deconcentration, 74 Iowa L. Rev. 1105, 1105 (1989); Harry First, Woodstock Antitrust 3–4 (N.Y. Univ. Ctr. for Law, Econ. & Org., Law & Econ. Research Paper Series, Working Paper No. 18-24, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3180878. On the early history, see generally Martin J. Sklar, The Corporate Reconstruction of American Capitalism, 1890–1916 (1988), and Hans B. Thorelli, The Federal Antitrust Policy 54–96, 235–308 (1955). Louis Brandeis spoke forcefully about these issues. See generally The Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis (Osmond K. Fraenkel ed., 1934) (including a collection of his papers dating back to the 1912 presidential election). On the extent to which the current neoBrandeis movement restates earlier movements, see Herbert Hovenkamp, Is Antitrust’s Consumer Welfare Principle Imperiled?, 44 J. Corp. L. (forthcoming 2018) [hereinafter Hovenkamp, Antitrust’s Consumer Welfare Principle], https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3197329.

2 See Hovenkamp, Antitrust’s Consumer Welfare Principle, supra note 1, (manuscript at 2).