Whatever Did Happen to the Antitrust Movement
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WHATEVER DID HAPPEN TO THE
ANTITRUST MOVEMENT?
Herbert Hovenkamp*
INTRODUCTION: MovEMENT ANTITRUST
Antitrust in the United States today is caught between its pursuit of tech-
nical rules designed to define and implement defensible economic goals,
and increasingly political calls for a new antitrust movement. The goals of
this movement have been variously defined as combatting industrial concen-
tration, limiting the economic or political power of large firms, correcting
the maldistribution of wealth, controlling high profits, increasing wages, or
protecting small business. None of those goals is new.1 They have appeared
and reappeared in the history of United States antitrust policy. Among the
articulated goals of movement antitrust, low consumer prices often go
unmentioned.2
In the 1960s, the policy historian Richard Hofstadter lamented the pass-
ing of the antitrust movement as one of the faded passions of American
© 2018 Herbert Hovenkamp. Individuals and nonprofit institutions may reproduce
and distribute copies of this Article in any format at or below cost, for educational
purposes, so long as each copy identifies the author, provides a citation to the Notre Dame
Law Reiew, and includes this provision in the copyright notice.
* James G. Dinan University Professor, University of Pennsylvania Law School and
the Wharton School.
1 For example, the history of anticoncentration rhetoric is voluminous and more than
a century old. See William E. Kovacic, Failed Expectations: The Troubled Past and Uncertain
Future of the Sherman Act as a Tool for Deconcentration, 74 IOWA L. Rzv. 1105, 1105 (1989);
Harry First, Woodstock Antitrust 3-4 (N.Y. Univ. Ctr. for Law, Econ. & Org., Law & Econ.
Research Paper Series, Working Paper No. 18-24, 2018), https://papers.ssm.com/sol3/
papers.cfm?abstractid=3180878. On the early history, see generally MARTINJ. SKLAR, THE
CORPORATE RECONSTRUCTION OF AMERICAN CAPITALISM, 1890-1916 (1988), and HANS B.
THORELLI, The FEDERAL ANTITRUST POLICY 54-96, 235-308 (1955). Louis Brandeis spoke
forcefully about these issues. See generally THE CURSE OF BIGNESS: MISCELLANEOUS PAPERS OF
Louis D. BRANDEIS (Osmond K. Fraenkel ed., 1934) (including a collection of his papers
dating back to the 1912 presidential election). On the extent to which the current neo-
Brandeis movement restates earlier movements, see Herbert Hovenkamp, Is Antitrust's Con-
sumer Welfare Principle Imperiled?, 44 J. CoRP. L. (forthcoming 2018) [hereinafter
Hovenkamp, Antitrust's Consumer Welfare Principle], https://papers.ssm.com/sol3/papers.
cfm?abstractid=3197329.
2 See Hovenkamp, Antitrust's Consumer Welfare Principle, supra note 1, (manuscript at
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