Like most coups d’e´tat, the Chicago School revolution in antitrust began with the declaration of a crisis. In 1965, Robert Bork and Ward Bowman declared in the pages of the Columbia Law Review that “[l]ong-standing con- tradictions at the root of antitrust doctrine have today brought it to a crisis of policy.”1 According to Bork and Bowman, antitrust policy had long vacillated between protecting competition and protecting competitors, but in recent years the “protectionist” and “[a]nti-free-market forces” had begun to win the upper hand.2 Unless soon arrested, these forces threatened to “destroy the antitrust laws as guarantors of a competitive economy.”3
Bork, Bowman, and the other white knights of Hyde Park saved the day in the 1970s and instituted the antitrust order that has survived to this time. But now a new generation of scholars is again declaring a crisis in antitrust. Un- like Bork and Bowman, this generation does not see the threat from radical over-enforcement of the antitrust laws, but from radical under-enforcement. A pervasive theme of recent books by Jonathan Baker,4 Tim Wu,5 Jonathan Tep- per and Denise Hearn,6 and Eric Posner and Glen Weyl7 is that antitrust en- forcement has drifted toward near-oblivion, with potentially dire consequences for our economy, and society more generally. Baker writes of a “market power paroxysm” and an “urgent” need to revive antitrust enforcement lest great harm befall society.8 Wu warns that we are “in grave danger” of repeating mid-20th century failures of competition policy in which “ex- treme economic concentration yields gross inequality and material suffering” paving the way for “fascism and dictatorship.”9 Tepper and Hearn write that lax antitrust enforcement has led to a “grotesque, deformed version of capital- ism” and calls for a “new revolution to cast off monopolies and restore free trade.”10 Posner and Weyl write of a “crisis of the liberal order,” occasioned in part by the fact that “antitrust law enforcement has not adapted to meet the latest form of concentrated economic power.”11
With the dramatic increase in antitrust’s political saliency in the last several years,12 there is every indication that, like Bork and Bowman in the ’60s, these recent calls for a new antitrust revolution will shortly bear fruit. Certainly, it is a good bet that the Chicago School, like each of its ideological predecessors (and successors), eventually will run its course. But here’s a thought: With the benefit of hindsight, it now seems that Bork and Bowman’s assertion of an antitrust crisis in the 1960s was overstated.13 Although antitrust certainly needed a course correction, the situation was not nearly so dire as Bork and Bowman argued. How, then, will the current exclamations that antitrust again faces a crisis look with the benefit of time? Is it possible that, when the dust settles and whatever regime follows Chicago has run its own course, the next generation will look back to this moment and say that “a correction was cer- tainly needed, but the assertions of a crisis were overstated?”
At the risk of being in denial about present conditions or a false prophet about future ones, I will venture to predict that, with the benefit of hindsight, current declarations of an antitrust crisis will appear overwrought. This is not—not—to say that the status quo is just fine, or that future generations will so judge it. Rather, it is to say that current competitive conditions will not seem as dire as the most critical voices proclaim them, and that some of the legal and regulatory fixes proposed by the critics14 will seem excessive (if they have been adopted).
Perhaps this is just the way it goes. Perhaps, to (badly) paraphrase Thomas Jefferson, the tree of competition must be refreshed from time to time with the blood of hyperbole. Still, before we take the next plunge, it may be profitable to look back and recall our experience with the last one.
