Document Type
Article
Publication Date
2020
Abstract
The Chicago School of antitrust has benefited from a great deal of law office history, written by admiring advocates rather than more dispassionate observers. This essay attempts a more neutral stance, looking at the ideology, political impulses, and economics that produced the Chicago School of antitrust policy and that account for its durability.
The origins of the Chicago School lie in a strong commitment to libertarianism and nonintervention. Economic models of perfect competition best suited these goals. The early strength of the Chicago School of antitrust was that it provided simple, convincing answers to everything that was wrong with antitrust policy in the 1960s, when antitrust was characterized by over-enforcement, poor quality economics or none at all, and many internal contradictions.
The Chicago School’s greatest weakness is that it did not keep up. Its leading advocates either spurned or ignored important developments in economics that gave a better accounting of an economy that was increasingly characterized by significant product differentiation, rapid innovation, networking, and strategic behavior. The Chicago School’s initial claim was that newer models of the economy lacked testability. That argument lost its credibility, however, as industrial economics experienced an empirical renaissance, nearly all of it based on various models of imperfect competition. Students getting PhDs in economics increasingly abandoned perfect competition as a useful starting point.
What kept Chicago alive was the financial support of firms and others who stood to profit from less intervention. Properly designed antitrust enforcement is a public good. Its beneficiaries — consumers — are individually small, numerous, scattered, and diverse. Those who stand to profit from nonintervention were fewer in number, individually much more powerful, and much more united in their message. As a result, the Chicago School went from being a model of enlightened economic policy to a powerful tool of regulatory capture.
Keywords
Competition law, antitrust regulation & policy, economics, Chicago & Harvard Schools, legal theory
Publication Title
University of Pennsylvania Law Review
Repository Citation
Hovenkamp, Herbert J. and Scott Morton, Fiona, "Framing the Chicago School of Antitrust Analysis" (2020). All Faculty Scholarship. 2113.
https://scholarship.law.upenn.edu/faculty_scholarship/2113
Included in
Antitrust and Trade Regulation Commons, Economic Policy Commons, Economic Theory Commons, Industrial Organization Commons, Intellectual Property Law Commons, Law and Economics Commons, Law and Politics Commons, Legal History Commons, Political Economy Commons
Publication Citation
168 U. Pa. L. Rev. 1843 (2020)