The Left Side of Antitrust: What Fairness Means and Why it Matters

Winter, 1994
77 Marq. L. Rev. 265

Author
Edwin J. Hughes *

Excerpt

I. Introduction

Antitrust law is out of whack. Like other areas of the law, the doctrines of antitrust have historically reflected a tension between claims of allegedly wronged individuals and broader societal interests. On the one hand, antitrust plaintiffs invoke the law to remedy what they assert to be various forms of damaging and unfair competition. The interest in redressing particular acts of wrongdoing is referred to here as the left side of antitrust law. On the other hand, the principles of antitrust law are also designed to promote a market structure conducive to the efficient allocation of resources. This concern for efficiency is referred to here as the right side of the law.

The tension between concern for the victims of unfair business tactics and deference toward the type of vigorous competition that is the hallmark of an efficient market kept antitrust law on a roughly forward course for many years. But over the past fifteen years or so, an exclusive concern for economic efficiency has caused the law to tilt perilously to the right. Many courts have jettisoned concern for the individual competitor as an appropriate consideration of antitrust. As a result, unrestrained deference to a robust and free-swinging competitive process has come to dominate antitrust analysis and to doom most antitrust claims.

Plaintiffs, to their regret, have recently found many new ways to lose an antitrust case. For example, a discounting retailer challenging a termination can show that its supplier simply caved-in to ...

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