Progressive Voices in Competition Law

Posted by Social Science Research Network

Progressive Voices in Competition Law – Spencer Weber Waller (Loyola University of Chicago, School of Law – Institute for Consumer Antitrust Studies)

ABSTRACT: If the only thing one knew about US antitrust law were the decision of the United States Supreme Court, you would have a decidedly unbalanced view of the law. Defendants have won the vast majority of cases in that court since the early 1990s. The tone of the majority opinions of the Court has increasingly echoed that of the Chicago School. In addition to the increasingly permissive use of the US rule of reason to justify joint conduct and the increasing acceptance (and even praise) of unilateral conduct by dominant firms, the court has crafted new procedural barriers for antitrust plaintiffs, particularly in the class action area.

However, this view alone would give you a distorted vision of US antitrust law and policy. Economics continues to evolve beyond the Chicago School prescriptions of the 1970s and 1980s. Debate over proper antitrust policy has been renewed by the recent economic crisis, widening wealth inequality, financial firms deemed too big to fail or even criminally prosecuted, crony capitalism, and consolidation in key industries, such as telecommunications, finance, agricultural, and airlines.

This short introductory introductory essay seeks to articulate what a progressive vision for competition policy means for current competition policy in the United States and abroad and highlight some of the outstanding recent contributions in the field that will be appearing shortly in a Spanish language competition law anthology entitled “Libre Competencia y la Sociedad Buena. Perspectivas Actuales en el Derecho de la Competencia”, Fernando Araya (ed.), Universidad Alberto Hurtado, (Forthcoming, 2014). This anthology will present to a Spanish speaking audience previously published works by Thomas Nachbar, Maurice Stucke, Thomas Horton, Harry First, Frank Maier-Rigaud, Robert Lande, Joshua Davis, C. Mantzvino, and myself.