One of the ideas I have emphasized throughout this book is the distinction between harm and wrong, which is usually ignored in discussions of economics in general and antitrust in particular. In most of these discussions, the mere existence of harm is sufficient to motivate a policy response—and not just motivate it, but justify it as well. Ironically, even though harm is a central focus of economic decision-making, it is not treated as an absolute wrong that must be eliminated—in fact, there is no concept of a moral wrong in economics or, as we’ve seen in antitrust, especially as considered by economists.

In this chapter we’ll explore this distinction in more depth. We start by examining a common example of its neglect in economics, the critique of which opens the door for important legal concepts, which themselves are controversial elements of the economic approach to law (also known as “law and economics”). Although this chapter does not address antitrust as directly as most, it does enlighten several of the discussions to this point while setting the stage for those to come in the rest of the book.

Externalities

Perhaps the most pernicious example in economics of the confusion between harm and wrong is the externality. As all students in introductory economics courses are taught, an externality occurs when a transaction between two parties affects someone who has no part in it. (For this reason, externalities are sometimes called third-party effects.) Externalities can be positive or negative: for example, homeowners who take good care of their property make the neighborhood more attractive and increase the value of their neighbor's property, and homeowners who do not take care of their property have the opposite effect.

Although it is a part of the standard definition used in economics, with its focus on the third-party effects of market activity, the existence of a commercial transaction is not essential to the identification of an externality. In general, an externality occurs whenever one person's actions inadvertently affect another person's interests (for better or for worse). The implication is that if the other person had been consulted, or if their interests had been considered, the external effects could have been managed better.

In terms of law and policy, negative externalities are obviously the greater concern, but there are costs to positive externalities too, specifically in terms of unrealized benefit.

This chapter investigates the precarious arrangements embedded in the systems and processes of migration management across three different country contexts: the UK, Germany, and Australia. The country comparison shows how precarious workplace/worker and societal arrangements have been woven into the systems of migration management (Paret and Gleeson ; Vosko ). The examination employs an historical methodology to show how approaches to migration management create a racialised precarity in the destination country generally; and more specifically in the destination country labour market where different groups of migrant workers are channelled into and toil in the least favourable areas of the labour market. Accordingly, we shed light on the rules underscoring and the implications of the process of migrant worker acceptance, settlement, and integration in a new land and labour market.

In liberal societies, everyone claims certain rights. Depending on where you live, you may have the right to free speech, the right of free worship, and the right to love and marry who you choose—all subject to limitations in acknowledgment of the rights of others (which, in extreme cases, are litigated in court or debated in legislatures). Different political parties and activist groups argue for the importance of certain rights over others, or that their constituents or members deserve more rights than other people do or more protection for their preferred rights when they conflict with others. Some argue that in the United States, more than any other democracy, rights are emphasized too much; as legal scholar Jamal Greene puts it, “rights are the commandments of our civil religion,” and they are often presumed to stop a discussion rather than providing grounds for exploring it more deeply.

A confusion over the nature and importance of rights also lies at the heart of the problems with antitrust, in which the traditionally protected rights of some parties are neglected at the same time that new, arbitrarily granted rights are implied to belong to other parties. In this chapter, we’ll outline a basic conception of rights in general and property rights in particular, focusing on their importance as well as their limitations. Then we’ll apply this conception to antitrust, beginning with exploring the specific rights firms and consumers have in the marketplace and what considerations legitimately limit the exercise of these rights. This will support the overall argument of this book that antitrust law penalizes firms, not for violating any rights held by consumers or competitors, but simply for failing to contribute to total welfare—exactly the requirement against which their property rights are meant to protect.

The essence of rights

The understanding of rights that I use in this book is very simple and moderate, and I expect that it is one that most readers will find reasonable and familiar. I am not using any precise or specific definition, but merely the concept of rights that Dworkin referred to when he described them as “trumps,” writing (as we saw in Chapter 3) that “individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do.”

Existing research on the rise of precarious forms of employment has paid little attention to gender and diversity challenges. Yet precarious work has damaging effects for vulnerable demographics, with women, ethnic minorities, and people with disabilities more considerably affected. This volume unpacks this research and offers insights into the role of organisations in fostering inclusive change.

This chapter presents case studies of female janitorial workers, working on a contractual basis, in a public sector organization in Pakistan where the typical employment format is full-time and permanent. Drawing on these cases, the chapter seeks answers to three interrelated research aims: (1) to study the gendered aspect of precarious work in Pakistani organizations, (2) to identify the intersectionality of gender, social class and religion in relation to precarious work, and (3) and to understand the various dimensions of precarity in specific reference to the intersectionality of gender, social class and religion. The findings offer insights into conceptualizing precarious employment and present a taxonomy that divides precarity into three distinct categories: (1) precarity in terms of job security and continuance of employment, (2) precarity in terms of financial stability, and (3) systematic precarity that affects certain groups more than the others. Findings reveal that these categories have distinct effects on different categories of individuals.

Existing research on the rise of precarious forms of employment has paid little attention to gender and diversity challenges. Yet precarious work has damaging effects for vulnerable demographics, with women, ethnic minorities, and people with disabilities more considerably affected. This volume unpacks this research and offers insights into the role of organisations in fostering inclusive change.

As we saw in the last chapter, the most common interpretation of antitrust today is explicitly economic in nature, based on maximizing the benefit to consumers (or society as a whole). Although this was not the motivation of those who wrote the original antitrust laws (or the Neo-Brandeisian revivalists), who were more focused on limiting corporate size and concentration, the consensus today remains that antitrust should focus on economic concerns, specifically the effects on firm behavior on welfare or efficiency.

In this chapter I shall survey the economics behind antitrust, not only because it is the mainstream understanding, but also because many of the issues I identify in antitrust are embedded in the economic analysis itself. If economics is new to you, I hope you find my explanation intuitive and non-technical, free of the customary graphs and math. (If you are familiar with economics already, you may find my treatment interesting for the same reason.) My goal is to introduce the basic economic rationale for antitrust, focusing on only the elements necessary for the philosophical arguments I shall introduce in the next chapter.

Welfare and surplus

The field of economics can be divided into two parts: positive economics, which describes the behavior of individuals, institutions, and the economy as a whole, and normative economics, which makes recommendations to improve the outcomes of this behavior based on some goal (whether implicit or explicit). Although antitrust has relied for the past half century on the positive economics of firm behavior and market outcomes (a field known as industrial organization), the legal and policy-oriented side of antitrust falls squarely within normative economics.

Within normative economics, antitrust is an application of welfare economics, which aims to maximize the total welfare of the members of society. In the context of commercial activity, economists define welfare as the sum of the well-being of all participants in the market, or the total benefit of commerce to buyers and sellers, net of the costs to both. This is easier to see on the producer side: their benefit is the revenue they earn from selling goods and services, and their costs include wages and salaries, rent, utilities, and the cost of raw materials. When we subtract costs from benefits, we get their net benefit, which we know better as profit.