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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
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.


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