Antitrust Populism and the Conservative Movement
On October 7, 2020, the Federalist Society’s Pennsylvania Student Chapter, the Penn Law Journal of Law and Innovation, and the Regulatory Transparency Project co-sponsored an event on “Antitrust Populism and the Conservative Movement.”
During the 1986 Supreme Court confirmation hearings for then-Judge Antonin Scalia, he was asked about his views on antitrust. “In law school, I never understood [antitrust law],” Scalia explained, “I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then.” Some contend that the much-needed coherency in antitrust law was brought about by the Chicago School revolution and the adoption of the consumer welfare standard.
Today, Robert Bork’s consumer welfare paradigm faces challenges. Antitrust law is back at a political crossroads, with both sides calling for a politicized approach to address problems such as anti-conservative bias, economic and racial inequality, and a whole host of other issues, while focusing on slogans and labels rather than relevant economic and legal questions. Additionally, some experts argue that the economic consequences of many of the recent proposals would make the American economy and consumers substantially worse off across a wide array of industries. At the same time, today’s antitrust debate underscores some interesting rifts and tension within both political parties, serving as an interesting microcosm of broader political dynamics.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.