June 20, 2017

Private: Reconceptualizing Antitrust Law as a Tool to Reinforce Democracy

2017 ACS National Convention, antitrust law, Jeff Mandell

*This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium considers topics featured at the three day convention, which took place on June 8-10, 2017. Learn more about the Convention here

by Jeff Mandell, Partner, Stafford Rosenbaum LLP

The ACS National Convention is always an opportunity to see old friends, to make new connections, and to be inspired. But one of my favorite aspects of the convention is that I always learn something new. As I reflect on this year’s convention, the session that resonates with me is the one on antitrust law. This is particularly surprising because I have never worked on an antitrust case, never took an antitrust class and truly have no knowledge of antitrust law beyond what I have gleaned by osmosis over the years.

The panel discussion—titled “A Second Gilded Age: The Consolidation of Wealth and Corporate Power”—was engaging and illuminating. It provided a basic overview of the history of antitrust regulation, the evolution of the key theories courts use in evaluating antitrust claims, and a window into new thinking in the academy and how that might apply in practice. This is a tall order for ninety minutes, and the panel was expertly moderated by Ganesh Sitaraman, a professor at Vanderbilt Law School whose recent book, The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic, is garnering acclaim. Professor Sitaraman kept the conversation moving, but also posed pointed questions to specific panelists, ensuring that the discussion was balanced and did not veer into arcana.

The panelists themselves were excellent and provided complementary insights. Elizabeth Wydra, president of the Constitutional Accountability Center, talked about the importance of litigation as an engine of change and several times brought the conversation back to brass tacks by connecting abstract ideas to what happens in the courtroom. Koren Wong-Ervin, director of the Global Antitrust Institute at the George Mason University Antonin Scalia Law School, spoke clearly about current antitrust doctrine and defended the focus—first drawn from work at The University of Chicago Law School in the 1970s and 80s—of antitrust analysis on the economic impact on consumers. Without market harm, professor Wong-Ervin argued, there is no administrable, necessary or desirable basis for applying antitrust restrictions.

The most active panelists were Lina Khan, a legal fellow at the New America Foundation and a research scholar at Yale Law School, and Zephyr Teachout, a professor at Fordham University School of Law and recent political candidate. Professor Teachout invoked the history of antitrust law, arguing that the presidential campaign of 1912, in which antitrust regulation was a major issue, was concerned not with the market effects of oligopolies, but with the distortions such businesses imposed on political and social relations. Professor Teachout also repeatedly sought to connect antitrust to other areas of law, including regulations designed to fight political corruption.

For her part, Khan was both the most practically grounded and the most academically abstract. Drawing on her own background as a business journalist, she talked about the reality of oligopoly in several major industries right now and the dangers that can pose. She also outlined new and developing academic work that seeks to highlight the ways in which business consolidation can harm America even while appearing not to directly cause price increases or market distortions. She argued that those harms are indeed present but also that courts can and should be more sensitive to other consequences of consolidation, especially the concentration of political and economic power in a small number of players across several key industries, from online shopping to internet service, airlines to health care, farm equipment to cellular phones.  

Professor Wong-Ervin argued that none of those industries have seen significant price increases, which means that consolidation has not been harmful. She also argued that the political and social harms that other panelists decried are difficult to measure, inherently subjective, and ultimately not amenable to a workable standard that courts can apply. Khan and Professor Teachout, in particular pushed back on this, but they both acknowledged that the academic literature is still developing, with ample room for more work to flesh out both a theoretical framework and a vocabulary for translating these new concerns into terms that courts can use.

Prior to this panel, my extremely limited understanding of antitrust law assumed that the primacy of the Chicago School as the analytical touchstone was unquestioned. The panel gave me a glimpse of active academic discussion and how it might play out in a courtroom—or a political debate. For me, the panel’s impact might best be understood anecdotally. On my way home from the Convention, I ordered Sitaraman’s book. And when the news broke last week that Amazon plans to buy Whole Foods, my first thought was what Khan would say.