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47 N.Y.U. L. Rev. 903 (1972)
The Emergence of Societal Antitrust

handle is hein.journals/nylr47 and id is 929 raw text is: THE EMERGENCE OF SOCIETAL ANTITRUST ARTHUR D. AUSTIN* Some who perceive deficiencies in the present social and eco- nomi arrangements in the United States argue that these problems be alleviated by altering the goals of antitrust policy. If social jts- tice, and not the maintenance of competition, were to motivate antitrust enforcement, a potent weapon would be gained by re- formers. Professor Austin demonstrates that this vision of a socially conscious antitrust is replete with both internal inconsistencies and regrettable trade-off effects. I INTRODUCTION E CONOMISTS have traditionally justified a free enterprise sys- tem by arguing that it triggers an efficient allocation of re- sources in a maner consistent with desirable social and political objectives. It is assumed that under this scheme the impersonal interaction of supply and demand directly benefits the consumer by channelling resources toward innovation and quality at the lowest possible costs and prices.' This justification does not take the infallibility of free enterprise for granted, nor does it assume that it -will be self-executing when confronted by efforts to sub- stitute private rule for operation of the more or less automatic mechanism of competitive markets.2- In fact, the antitrust laws are a venerable acknowledgment of an imperfect system,3 for * Professor of Law, Case Western Reserve University. BS., 1958, University of Virginia; JD., 1963, Tulane University. I Report of the Attorney General's Natl Comm. to Study the Antitrust Laws 317-18 (1955); J. Clark, Competition as a Dynamic Process 13-18 (1961); C. Wil- cox, Public Poliies Toward Business 11 (4th ed. 1971). The noneconomic advan- tages of competition are often emphasized: Competition decentralizes and disperses power; resources are allocated impersonally and not at the whim of the powerful; and competition permits individuals to choose any trade or profession they prefer, limited only by their skills. See, e.g., C. Edwards, Big Business and the Policy of Competition 5-6 (1956); F. Scherer, Industrial Market Structure and Economic I erformance 11-12 (1970). 2 Turner, The American Antitrust Laws, 18 Modern L. Rev. 244 (1955). As Wilcox notes: The existence of competition is not always assured. Many firms may agree among themselves that they will not compete. Two or more firms may combine to make a single unit. One or a few firms may come to dominate an industry, through the employment of unfair methods or through the enjoyment of special advantages. If the consumer is to reap the benefits of competition, government must mak-e sure that competition is maintained. Wilcox, supra note 1, at 11-12. 3 The Sherman Act prohibits contracts, combinations or conspiracies in restraint of trade, and monopolization, as well as attempts, combinations or con- spiracies to monopolize. 15 U.S.C. §§ 1, 2 (1970). The Clayton Act man1es it unlawful to lease or sell goods, wares, merchandise, machinery, supplies, or other Imaged with the Permission of N.Y.U. Law Review

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