This paper – which can be found here – identifies an old native Populist strain in American thought, which: “identifies virtue with the small local businessman and evil with the banks, the railroads, and big corporations.“  The goal of the paper is to question: “the antitrust tradition of associating populism with sympathy for small businesses and fear of bigness, (…) explain the mechanisms of populism in antitrust, and emphasize the anti-intellectual nature of the phenomenon.

A first section seeks to define populism in antitrust: “Studies of “populism” identify the phenomenon as a confrontational political strategy that seeks to challenge and disrupt the existing social order by solidifying and mobilizing the animosity of the “people” toward the “corrupt elites” and the “establishment”. (…) Two common characteristics of populism are nationalism and anti-intellectualism.” Looking more specifically at antitrust, populism is first described as an instantiation of these trends as regards competition rules. Antitrust populist is said to have two prominent facets, which for simplicity may be called “pro-enforcement” and “anti-enforcement” populisms.

  • Pro-enforcement populism is an old strain of antitrust thought, and what one usually thinks about when “antitrust populism” is mentioned. It refers to exaggerated concerns that businesses act to harm competition and consumers, and that large businesses are inherently bad. It springs from the Progressive movement of the early 20th Century, and it may have been at the root of the adoption of competition rules in the first place.
  • Anti-enforcement populism refers to exaggerated beliefs that markets are competitive and tend to correct themselves relatively quickly, whereas erroneous antitrust enforcement is commonly mistaken and tends to impair the normal functioning of markets.

A second section looks at the relationship between antitrust and technological development. It beings by looking at the relation between innovation and populism in general. The author notes that while innovation may increase productivity and overall welfare, it can create losers in the short term: “the transition from the “old economy” to the “new economy” produced considerable efficiencies but is unfavorable to large segments in society.” Using various examples related to the transition to the data economy, he notes that: “The productivity gains tend to be unfavorable to the workforce and small companies. Technological advancements also permit differential pricing—selling the same product to different buyers at different prices—that is efficient, yet squeezing consumer surplus. (…) Long term-trends underscore negative welfare effects experienced during the transition to the new economy. Since the mid-1970s, income inequality has been on the rise, business dynamism (the rate of entry of entrepreneurial firms) has been declining, job mobility between jobs and across occupations has considerably diminished, market concentration in many key industries has considerably increased, and the productivity growth has been relatively disappointing”. This is said to be important for the development of populism: “There is (…) a consensus that social discontent caused by the transition to the new economy is among the primary causes of the present rise of populism in the United States.”  This, in turn, is linked to previous experiences of large technological development, which have all “generated massive waves of populism”.

Turning to the implications of this for antitrust, the author argues that: “(US) Antitrust law was born in a populist reaction to the Second Industrial Revolution.” However: “By the 1960s, memories of the anxieties and displacement caused by the Second Industrial Revolution faded. Confidence in government regulation began to erode. (…) Conservative populism emerged of the critical ineffectiveness of the establishment (the government and the Supreme Court), ridiculing liberal intellectuals, and making exaggerated claims for economic logic.” More recently, the displacements created by the transition to the digital economy: “prompted two populist reactions to antitrust law: some have fiercely argued that antitrust is ill-equipped to regulate innovative firms, while others have strongly argued that antitrust ought to address the size of the technological giants and their financiers.

In conclusion: “populism has been a durable phenomenon in antitrust law and is likely to continue to exist. Contrary to the common depiction in the literature, antitrust populism, has several varieties. Although liberal varieties were particularly influential in the past, in recent decades conservative varieties dominate antitrust law. With the changes in the economy, especially since the Great Recession the liberal varieties have become more vocal and possibly started regaining power.”

 

While I think this article provides an interesting overview of intellectual developments in antitrust, and how they may be related to waves of technological innovation, I take issue with how the author uses “populism”. In particular, I think the term is used too liberally. You may not agree with the defence of small businesses as an antitrust concern, but German ordo-liberals would be surprised of being accused of political opportunism. I also think it is unfair to hold that pro-enforcement populists such as Brandeis or anti-competitive populists such as Bork are anti-intellectuals, or that the Chicago School was populist (note: this is the author’s classification of these judges). Lastly, I am surprised by the absence of any discussion of more recent examples (which, according to the author, are liberal) of antitrust populism.

Ultimately, my main criticism can be simply put: because populism is not adequately defined, it is very hard to understand what antitrust school or system does not deserve the epithet of “populist” from the author.

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