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68 Geo. L. J. 1053 (1979-1980)
The Antitrust Industry

handle is hein.journals/glj68 and id is 1069 raw text is: The Antitrust Industry ROBERT B. REICH* Although traditionally perceived as a set of legal rules designed to promote competition, antitrust can also be understood as an indus- try. Mr. Reich contends that the transactions of industry partici- pants, rather than judicial decisions, give antitrust its practical meaning. After describing the activities of buyers and sellers in this market, Mr. Reich speculates about whether society can devise cheaper ways of reaping the social benefits of antitrust. Antitrust is more than a set of legal rules in support of certain and perhaps conflicting public policies. It is an industry. Attorneys, legislators, corporate officials, bureaucrats, law professors, management consultants, and econo- mists deal in antitrust every day. Their transactions, rather than the musings of appellate courts, give practical effect to antitrust. These transactions determine how society enforces and understands antitrust rules in the context of countless business decisions; they also shape antitrust rules, determining which will be amended or clarified. Of the few of these transactions that become full-blown controversies yet fewer proceed to litigation and still fewer result in final decrees. Moreover, antitrust litigants appeal comparatively few decrees. Thus, because the courts infrequently articulate the law, transactions within the antitrust industry actually give antitrust its meaning. It may appear odd to consider antitrust as an industry or to contemplate numbers of persons transacting in it as if it were a tradeable product. Even those persons who deal in antitrust daily may disagree with the market analogy. These traders in antitrust may take offense with the suggestion that they seek to use antitrust strategically for their own ends. I do not wish to impugn anyone's motives nor to advance a dismally cynical view of human nature. All markets contain traders whose motives combine self-interest with concern for the public good. In describing antitrust as an industry, my purpose is to show how people use it to further goals that might be inconsistent with its public purposes. Further, I want to suggest that the strategic uses of antitrust might be more significant than its substantive content and to explore the possibility of achieving the goals of antitrust by alternative means that might be less susceptible to strategic manipulation. To the extent that fault exists with our present system, it lies in the structure of antitrust which promotes a market in such strategems rather than with those who use that market for their own ends. For the sake of brevity and clarity I have simplified the subtle motives, complex strategies, and intricate transactions involved in the antitrust market. The picture presented is a mere sketch; perhaps it will inspire a more detailed canvas. First, I describe the buyers of antitrust and show how they condition their purchases on the basis of various market incentives. Second, I * Director of Policy Planning, Federal Trade Commission. B.A. 1968, Dartmouth College; M.A. 1970, Oxford University; J.D. 1973, Yale Law School. The views expressed are those of the author, not necessarily those of the Federal Trade Commission. 1053

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