Antitrust and Unfair Competition Law
Competition: Fall 2021, Vol. 31, No. 2
- A Litigator's Perspective On the Evolving Role of Economics In Antitrust Litigation
- An Economic Perspective On the Usefulness of the Consumer Welfare Standard As a Guiding Framework For Antitrust Policy
- Chair's Column
- "COMPETITION POLICY IN ITS BROADEST SENSE": CAN ANTITRUST ENFORCEMENT BE A TOOL TO COMBAT SYSTEMIC RACISM?
- Editor's Notes
- Fairness Requires the Elimination of Forced Arbitration
- Jeld-wen: Opening the Door To Private Merger Challenges?
- On Being a Transwoman Lawyer...
- Patents and Antitrust In the Pharmaceuticals Industry
- Ten Years Post-therasense: Closing the Gap Between Walker Process Fraud and Inequitable Conduct
- The Evolution of Antitrust Arbitration
- The Consumer-welfare Standard Should Cease To Be the North Star of Antitrust
THE CONSUMER-WELFARE STANDARD SHOULD CEASE TO BE THE NORTH STAR OF ANTITRUST
By William Markham1
In this article, I argue that federal antitrust law has been undermined by the consumer-welfare standard and related doctrines, and in direct consequence it has failed to accomplish its intended purposes and failed even according to the very narrow, myopic standards of consumer-welfare jurisprudence. To restore antitrust law, so that it will sufficiently protect and promote competitive markets and curtail monopolistic and anticompetitive practices, it is not necessary to adopt new doctrines or standards, but only to revive and faithfully observe the classical common-law prohibitions against restraint of trade and unauthorized monopolies. Senator Klobuchar’s bill now pending in the Senate appears to accomplish this very result and thus seems to be the kind of reform that would redress the systematic under-enforcement of federal antitrust law during the consumer-welfare era.