Article by William H. Page
Antitrust scholars frequently disparage their opponents' positions as ideological. The Chicago School and its populist opposition each assert that the other's approach rests on political preconceptions that are inconsistent with antitrust. Chicagoans argue that “noneconomic” considerations, particularly the populist solicitude for small business, subvert a policy designed to enhance economic efficiency. Critics counter that Chicago's concern for efficiency, for all its scientific trappings, is itself rooted in an ideology inconsistent with antitrust. Still other scholars, notably Thomas Arthur, argue that both approaches are ideological and, therefore, unprincipled. Instead, Arthur suggests that the Sherman Act incorporates neutral standards from the common law of restraint of trade—standards that can significantly constrain judicial discretion.
My goal here is to place these various assessments in a broader perspective by showing the central role of ideologies in the emergence of antitrust as a national policy. The controversy between the Chicago approach and its detractors does indeed reflect conflicting ideologies, opposed visions of human nature, market relationships, and the proper role of the state. The conflict between these ideologies has set the terms of political, economic, and legal debate on the monopoly problem since the eighteenth century. It has also defined antitrust policy from its inception: It produced the synthetic policy we call antitrust near the end of the nineteenth century, then motivated the struggle over the proper interpretation of the policy in its early years. In what follows, I provide a context in intellectual history for the present debate over antitrust standards by offering an account of the opposing ideologies and their influence on the framing of the Sherman Act and on its interpretation in its first three decades.
About the Author
William H. Page. J. Will Young Professor of Law, Mississippi College School of Law. B.A., Tulane University, 1973; J.D., University of New Mexico, 1975; LL.M., University of Chicago, 1979.
Citation
66 Tul. L. Rev. 1 (1991)