Should We Trust Antitrust Laws?
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The problems with antitrust are legion. For starters, how do you define the market that monopolists are supposed to be dominating? Does the market for office supplies, for instance, cover only stores like Staples and Office Depot, or does it include Wal-Mart? Is antitrust supposed to benefit consumers, or do we want to protect small firms as well? What should the government do about monopolists whose size generates cost and quality advantages that make it impossible for others to compete? Do you break up the company in the name of competition, thus forcing consumers to make do with lower quality, higher-cost goods? The government did it to Alcoa, the aluminum company, in the mid-20th century, and recently proposed to do much the same to Microsoft.
Because the questions of antitrust are still very much with us, there is always need for a good book to remind us how much harm antitrust actions can do. Unfortunately, “The Abolition of Antitrust” (Transaction, 176 pages, $39.95) is not that book. A collection of essays on the economics, legal history, and morality of antitrust, its essayists quote liberally and lovingly from Ayn Rand. Unsurprisingly, their take on antitrust laws is that they should not exist. More surprisingly, they fail to make even a superficially convincing case for this view.
Abolishing antitrust laws is not as wacky as it sounds. There’s little clear evidence that antitrust laws are good for either consumers or the economy. Monopolists, unless they have some sort of regulatory protection like AT&T did, generally have to compete against the shadow presence of potential rivals. Since economies of scale often give monopolies low cost structures, this can be beneficial to consumers. When Microsoft choked off the threat from Netscape by giving away its Web browser, this was bad for Netscape, but good for the rest of us, who got something valuable for free.
But while Americans are fond of their own economic liberties, they are almost as suspicious of Big Business as they are of Big Government. If you want to convince them to throw our antitrust laws out the window, you should be prepared to lead them to your conclusion step by logical step. These authors don’t really attempt to engage those people who don’t share their philosophy: Instead, they deliver fiery sermons on the sanctity of contract, or lyrical paeans to the intellectual brilliance of capitalists in a style reminiscent of “Atlas Shrugged.”
This is simply insufficient. No one who has spent much time in business believes executives owe their success to sheer brainpower, much less that all contracts are sacred.
Several authors make offhand stabs at justifying such status by drawing a line between contracts, which are entered into voluntarily, and court judgements, which are not. And it does seem that in many antitrust cases, the Justice Department wants to substitute a court’s opinion about what is good for consumers for the judgement of the consumers themselves. In a free society, this should give us pause. But as an absolute principle, “the sanctity of contract” is unworkable.
Should courts uphold a contract to sell yourself into slavery? More realistically, I can imagine businesses entering into all sorts of contracts that we’d want the government to interfere with. If a big manufacturer pays all the rail freight companies not to transport the products of its smaller rivals, it’s hard to make an economic or a moral case for the sacredness of such a contract. Or what if all the companies in a city agree they will pay all of their employees minimum wage, and no more – should a court uphold sanctions on firms that violate the agreement?
Economists often argue that price-fixing prosecutions are useless because cartels aren’t very effective. The rewards for cheating are simply too great – that’s why OPEC has trouble keeping oil prices steady. But cartels are unstable precisely because they have no enforcement mechanism; courts will not uphold a contract to fix prices. Sports teams, which have a special antitrust exemption, have relatively little trouble getting members to toe the line on things like minimum salaries.
In short, contract law isn’t the simplistic matter of “anything voluntary goes” that the essays repeatedly make it out to be – and without that simplistic formulation, one of the book’s main arguments against antitrust crumbles.
The authors consistently indulge their passion for these sorts of absolute principles at the expense of making a coherent case. Even Eric Daniels’s excellent essay on the history of monopoly in America is marred by an attempt to draw out some moral principle by which government-granted monopolies on intellectual property are good, but government-granted monopolies over, say, telephone service, are not. We grant patents and copyrights for the practical reason that they are necessary to ensure the supply of books and inventions – not because there is some discernible ethical difference between writing a novel and providing telephone service.
There is a great deal of chaff in this book, which must be sifted through to find a few grains of interest, and the kernels are generally not interesting enough to justify it. For now, writers like Robert Bork will maintain their dominance in the market for critiques of antitrust.
Ms. McArdle last wrote in these pages on offshoring.