Edited by Josef Drexl, Warren S. Grimes, Clifford A. Jones, Rudolph J.R. Peritz and Edward T. Swaine
Chapter 2: Consumer Choice as the Best Way to Recenter the Mission of Competition Law
Robert H. Lande* INTRODUCTION 1 The mission of competition law needs to be clarified, and this article shows that the best way to do this is to interpret and enforce these laws in terms of consumer choice. This reformulation is necessary due to uncertainty and instability that exist in the field. For example, even though the United States’ competition laws, which it calls antitrust laws, are more than a century old, it can’t decide upon these laws’ overall purpose. The ‘main point of antitrust’ in the United States from 1890 to the 1970s was a variety of social/political/economic objectives, including the belief that big businesses were suspect and small businesses were good.1 Then the efficiency-only paradigm emerged during the Reagan and Bush administrations.2 More recently, the Clinton Administration seemed to care about enhancing economic efficiency and also about protecting consumers from * This chapter is in large part a condensation and update of NW Averitt and RH Lande, ‘Using the “Consumer Choice” Approach to Antitrust Law’ (2007) 74 Antitrust LJ 175. I am grateful to Christine Carey, James Denvil and Gary Stapleton for excellent research assistance. 1 RH Lande, ‘Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged’ (1982) 34 Hastings LJ 64, at 101– 105, available at http://papers.ssrn.com/so13/papers.cfm?abstract_id=1121459. See also JB Kirkwood and RH Lande, ‘The Fundamental Goal of Antitrust: Protecting Consumers, Not Increasing Efficiency’ (2008) 84 Notre Dame L Rev 191, available at http://papers.ssrn.com/so13/papers.cfm?abstract_id=1113927. 2 See...
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