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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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