Rediscovering Antitrust’s Lost Values

By Thomas Jeffrey Horton (University of South Dakota)

This Article traces Congress’s consistent balancing and blending of social, political, moral, and economic values and objectives over the course of nearly 120 years of antitrust legislation. As a starting point, a plethora of outstanding and insightful scholarship analyzing Congress’s objectives in passing the Sherman, Clayton, and FTC Acts already exists. Less studied, however, has been Congress’s more recent legislation, including the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), and the National Cooperative Production Amendments of 1993 and 2004, to the National Cooperative Research Act of 1984 (NCRPA). By analyzing the legislative histories of such antitrust legislation in detail, the author seeks to show that Congress has never identified any single economic value such as consumer welfare or allocative efficiency, as the sole guiding lodestar for American antitrust. Rather, since 1890, Congress has successfully sought to blend and balance a complex set of social, political, moral, and economic ideals, values, and objectives in our antitrust laws.

The author believes that it is time to deal with the real social, political, moral, and economic values conflicts in antitrust, instead of relying on neoconservative economic proxies that unilaterally declare the values debates to be scientifically and theoretically resolved. Based on nearly 120 years of legislative history, the author concludes that we need to return to an antitrust regulatory system that better reflects Congress’s dynamic historical balancing and blending of multiple fundamental American social, political, moral, and economic values. To do so, we must begin rediscovering antitrust’s lost values, and recommence our historic pursuit of an ethical, moral, and fair free-enterprise system truly devoted to the long-term economic and social welfare of all Americans.

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