By Hon. Richard D. Cudahy & Alan Devlin. Full text here.
Despite receiving thorough analytic treatment from the judiciary and academy, and notwithstanding its sophisticated doctrine, antitrust law remains dogged by a profound incongruity, for precisely what the law condemns remains elusive. Certainly, there is widespread agreement that the antitrust laws exist to promote some measure of efficiency. While this baseline serves as an adequate foundation for judging the legality of many business practices, it proves insufficient for some others. The Article seeks to inject much-needed specificity into the concept of “anticompetitive.” In doing so, it addresses the question of whether the Sherman Act is properly concerned with aggregate or consumer welfare. It explores the extent to which anticompetitive effect refers to more than an absence of competition. It considers how the law should treat conduct that results in price increases, but not demonstrable output restrictions. It explains how intertemporal effects complicate analysis and explores the implications of the paradoxical fact that “anticompetitive” conditions may be the sine qua non of long-run welfare. By highlighting the amorphous nature of antitrust’s most fundamental concept, and explaining how it can be clarified, the Article seeks to alleviate a significant shortcoming in the law.