The University of New Hampshire Law Review
Antitrust doctrine adopted the Chicago School’s narrow consumer welfare and economic efficiency analysis in the early 1970s. Since then, enforcement has drastically reduced, and market concentration has substantially increased. But the Chicago School is not true to either the intent of the original antitrust legislation – the Sherman Act – nor to the ‘economist’ they adopted as their ultimate advocate, Adam Smith. The Chicago School has cherry picked Adam Smith’s written works to support market deregulation and the existence of a perfectly efficient, rational marketplace, but this is not an accurate rendition of his works. Rather, Adam Smith was a philosopher who emphasized humans are more than homo economicus; the market requires morality and social support to function. The absence of fairness and morality from antitrust analyses allows for court decisions like Ohio v. Am. Express Co., mergers like that between AT&T and Time Warner, and monopolies like Amazon to continue existing without challenge.
Adding fairness to the equation is one method of encouraging competition and leveling the playing field. The Sherman Act’s legislators and Adam Smith explicitly contemplate fairness and morality. The courts are already equipped to judge fairness in complex economic and business- centered cases. Legislators are currently pushing to give government antitrust enforcers more power to regulate, but the courts must also be prepared to deal with lawsuits challenging anticompetitive behavior. Fairness is one factor easily supported by intent, history, reason, and necessity.
Jennifer Coté, Uncloaking the Invisible Hand: Reintroducing Fairness to Antitrust Analyses, 20 U.N.H. L. Rev. 195 (2021).