83 Antitrust L.J. 253 (2020)
The New Crisis in Antitrust (?)

handle is hein.journals/antil83 and id is 259 raw text is: 










             THE   NEW CRISIS IN ANTITRUST (?)

                           DANIEL  A.  CRANE*


  Like  most coups d'6tat, the Chicago School revolution in antitrust began
with the declaration of a crisis. In 1965, Robert Bork and Ward  Bowman
declared in the pages of the Columbia Law Review that [1]ong-standing con-
tradictions at the root of antitrust doctrine have today brought it to a crisis of
policy.' According to Bork and Bowman,  antitrust policy had long vacillated
between  protecting competition and  protecting competitors, but in recent
years the protectionist and [a]nti-free-market forces had begun to win the
upper hand.2  Unless soon  arrested, these forces threatened to destroy the
antitrust laws as guarantors of a competitive economy.3
  Bork, Bowman,   and the other white knights of Hyde Park saved the day in
the 1970s and instituted the antitrust order that has survived to this time. But
now  a new generation of scholars is again declaring a crisis in antitrust. Un-
like Bork and Bowman,   this generation does not see the threat from radical
over-enforcement of the antitrust laws, but from radical under-enforcement. A
pervasive theme of recent books by Jonathan Baker,4 Tim Wu,5 Jonathan Tep-
per and Denise Heam,6  and Eric Posner and  Glen Weyl7 is that antitrust en-
forcement   has  drifted toward   near-oblivion,   with  potentially  dire
consequences for our economy, and society more generally. Baker writes of a
market power  paroxysm  and  an urgent need to revive antitrust enforce-


   * Frederick Paul Furth, Sr. Professor of Law, University of Michigan.
   'Robert H. Bork & Ward S. Bowman, Jr., The Crisis in Antitrust, 65 COLUM. L. REv. 363,
363 (1965). Their law review article was based on an earlier article in Fortune. Robert H. Bork
& Ward S. Bowman, Jr., The Crisis in Antitrust, FORTUNE, Dec. 1963, at 138 [hereinafter Bork
& Bowman, FORTUNE].
   2 Bork & Bowman, FORTUNE, supra note 1, at 138.
   31Id.
   4 JONATHAN B. BAKER, THE ANTrTRUST PARADIGM: RESTORING A COMPETITIVE ECONOMY
(2019).
   5 TIM Wu, THE CURSE OF BIGNESS: ANTITRUST IN THE NEw GILDED AGE (2018).
   6 JONATHAN TEPPER wITH DENISE HEARN, THE MYTH OF CAPITALISM: MONOPOLIES AND THE
DEATH OF COMPETITION (2019).
   7 EIc A. POSNER & E. GLEN WEYL, RADICAL MARKETS: UPROOTING CAPITALISM AND DE-
MOCRACY FOR A JUST SocuEry (2018).


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