¹ This right is encoded into some of the most fundamental legal documents in the Anglo-American legal order. See, eg, Magna Carta, Art 61 (‘If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us—or in our absence from the kingdom to the chief justice—to declare it and claim immediate redress’) (The numbering is a later innovation; I have used the British Library’s translation, available at <http://www.bl.uk/treasures/magnacarta/translation/mc_trans.html>, accessed 6 July 2010); Bill of Rights 1689 (‘[I]t is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal’); US Constitution, 1st Amendment (‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances’).

² See, eg, R v Lord Chancellor, ex parte Witham [1998] Q, B, 575, 586 (‘Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically—in effect by express provision—permits the executive to turn people away from the court door.’).

³ Of course, other jurisdictions have comparable concepts. See, eg, the Constitution of the Republic of South Africa, § 22 (‘Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law’).

⁴ Przeworski, A, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge, Cambridge University Press, 1991) 37 CrossRefGoogle Scholar.

⁵ See N Pac Ry v United States (1958) 356 US 1, 4; United States v Topco Assocs (1972) 405 US 596, 610.

⁶ Caldwell, B (ed), Hayek, FA, The Road to Serfdom: Text and Documents—The Definitive Edition (Chicago, Chicago University Press, 2007, first published 1944) 134 Google Scholar.

⁷ See, eg, Constitution of the Republic of South Africa 1996, § 31(1) (‘Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community, to enjoy their culture, practise their religion and use their language; and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society’); Constitution of India 1949, Art 17 (‘The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law’); cf Constitution of Japan 1946, Art 9 (‘Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes’).

⁸ See, eg, Verizon Communications lnc v Law offices of Curtis V Trinko LLP (2004) 540 US 398, 407 (‘The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only unlawful; it is an important element of the free-market system.’).

⁹ Compare, eg, Erle, W, The Law Relating to Trade Unions (London, Macmillan, 1869) 32 Google Scholar (discussing R v de Berenger 3 M & S 67 (1814), a prosecution for combination to deceive the Stock Exchange that Napoleon Bonaparte had died and stating ‘[de Berenger] violated by the use of falsehood the private right of the purchasers in the market to buy at the price settled by competition’ (emphasis added)).

¹⁰ See Lande, RH, ‘Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged’ (1982–1983) 34 Hastings LJ 65, 76–77Google Scholar.

¹¹ In general, price discrimination—charging more to those who are willing to pay more—is arguably efficient because it allows more people to receive the product or service at a price that they are willing to pay. It does, however, tend to transfer wealth from purchasers to suppliers.

¹² See, eg, DS Clark, Secretary, Federal Trade Commission, The Robinson-Patman Act: General Principles, Commission Proceedings, and Selected Issues, Speech of 7 June, 1995, available at <http://www.ftc.gov/speeches/other/patman.shtm>, accessed 6 July 2010 (‘As the [Federal Trade] Commission has stated, “[t]he major legislative purpose behind the Robinson-Patman Act was to provide some measure of protection to small independent retailers and their independent suppliers from what was thought to be unfair competition from vertically integrated, multi-location chain stores”‘).

¹³ See, eg, Rockefeller, ES, The Antitrust Religion (Washington, DC, Cato Institute, 2007)Google Scholar (‘[The RPA] is in such low repute that the antitrust community prefers not to think of it as an antitrust law’).

¹⁴ See, eg, Verizon Communications v Law Offices of Curtis V Trinko (2004) 540 US 398.

¹⁵ Przeworski, above n 4, 180.

¹⁶ Bullock, A, Hitler and Stalin: Parallel Lives (London, HarperCollins, 1991) 224–27Google Scholar.

¹⁷ Letwin, W, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (New York, Random House, 1965) 18–52 Google Scholar; Letwin, W, The English Common Law Concerning Monopolies (1953-1954) 21 University of Chicago Law Review 355 Google Scholar.

¹⁸ Letwin (1953-1954), above n 17, 356.

¹⁹ Price, WH, The English Patents of Monopoly (Boston/New York, Houghton, Mifflin and Co, 1906) 132 Google Scholar.

²⁰ MacLeod, C, Inventing the Industrial Revolution: The English Patent System 1660–1800 (Cambridge, Cambridge University Press, 2002) 14 Google Scholar.

²¹ Price, above n 19, 7–8.

²² Ibid, 16–17 (‘The frugal queen, though loath to part with her treasure, was willing to bestow valuable patents upon her pensioners, favorites, personal servants, petty officers and clerks’), 20.

²³ Letwin (1953–1954), above n 17, 23.

²⁴ Ibid, 22.

²⁵ Compare Dolph v Troy Laundry Machinery Co (1886) 28 F 553, 555 (holding that a profit-sharing agreement was lawful and enforceable even though it led to higher consumer prices and commenting that ‘Washing-machines, although articles of convenience, are not articles of necessity’), cited in Thorelli, HB, The Federal Antitrust Policy; Organization of an American Tradition (Baltimore, The Johns Hopkins Press, 1954) 46ffGoogle Scholar.

²⁶ (1599) Moo KB 576.

²⁷ Ibid, 579, 580 (‘… car by-law doit estre fait en furtherãce del publick bone et le melior execution des leys, et nemy en ouster p’judice des subjects ou pur private gain’) (translation mine).

²⁸ (1610) 8 Co Rep 114. In that case, giving judgment, he famously said: ‘… it appears in our books, that in many cases, the common law will controul Acts of Parliament, and some times adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.’

²⁹ The parallel in US constitutional law would be the doctrine of ‘substantive due process’. See, for a classic statement, the dissent of Justice Stephen Field in the Slaughterhouse Cases 16 Wall (83 US) 36 (1873). Compare also the later opinion of Parker CJ in Michell v Reynolds, (1711) 10 Mod. 131, 88 ER 660, 661 (‘[N]o bye-law which is either unjust or unreasonable can ever be good’).

³⁰ Coke in fact offered a total of six grounds for holding that the by-law was void: we discuss here only the most interesting and pertinent.

³¹ (1599) Moo KB 576, 580–81.

³² Proclamation Concerning Monopolies, 28 November 1601 (Brit Mus Proc Coll (G 6463–388). Elizabeth herself seems to have done a brisk and lucrative business in dispensing monopoly patents. See, eg, Pike, LO, A History of Crime in England (London, Smith, Elder & Co, 1876) 103 Google Scholar (‘[M]onopolies were not granted without a consideration, and Elizabeth made a great profit out of this branch of her prerogative’).

³³ Darcy v Allen (1602) Moo KB 672, 11 Co Rep 84b.

³⁴ See Price, above n 19, 24, citing Noy, W, Reports of Cases taken in the Time of Queen Elizabeth, King James, and King Charles (London, printed by FL for Walbancke, M and Firby, T, 1656) 174–78Google Scholar.

³⁵ 11 Co Rep 84b, 86a.

³⁶ Compare, eg, The Taylors of Ipswich Case (1614) 11 Co Rep 53, 77 ER 1218, in which a guild by-law was held invalid by Coke (by then Lord Coke CJ) on the ground that it impermissibly infringed the ‘liberty and freedom of the subject’.

³⁷ 21 Jac 1 c3, s 2.

³⁸ Ibid, s 1.

³⁹ Ibid, s 6. Existing patents for new inventions were restricted to a term of 21 years.

⁴⁰ Ibid, s 9.

⁴¹ MacLeod, above n 20, 17. On 23 November 1640, the House of Commons ordered that ‘all patents and grants of monopolies that have been complained of in this House, be forthwith brought into this House.’ It had already been moved, on 9 November, ‘that no monopolists may sit in the House, nor projector’, and ordered that ‘unlawful projectors and monopolists that now are, have, or had any share or received benefit by any project or monopoly are disabled [from sitting]’. Jansson, M (ed), Proceedings in the Opening Session of the Long Parliament: House of Commons (Rochester NY, University of Rochester Press, 2000), vol I, 68, 246Google Scholar.

⁴² MacLeod, above n 20, 36–37 (‘In those areas where its interests were directly involved, the crown was quite unscrupulous in its administration of patents’).

⁴³ Ibid, 52.

⁴⁴ Thorelli, above n 25, 25, quoting Walton Hamilton and Associates, Patents and Free Enterprise, TNEC Monograph No 31 (1941) 12.

⁴⁵ Michell v Reynolds, above n 29, 661.

⁴⁶ The offence was defined in a statute, dating from either 1266 or from 1303, entitled De Pistoribus et Brasiatoribus et Aliis Vitellariis, which commanded that ‘no forestaller be suffered to dwell in any town, which is an open oppressor of poor people, and of all the commonalty, and an enemy of the whole shire and country; which for greediness of his private gains doth prevent others in buying grain, fish, herring, or any other thing to be sold coming by land or water, oppressing the poor and deceiving the rich; which carrieth away such things, intending to sell them more dear; the which come to merchants strangers that bring merchan dise, offering them to buy, and informing them that their goods might be dearer sold than they intended to sell, and an whole town or a country is deceived by such craft and subtlety’. See Craik, GL and MacFarlane, C, The Pictorial History of England: Being a History of the People, as well as a History of the Kingdom, vol II (London, C Knight, 1849) 828–29Google Scholar.

⁴⁷ Blackstone, W, Commentaries on the Laws of England, vol IV (1850) 157–58Google Scholar.

⁴⁸ See generally Letwin (1953-1954), above n 17, 368.

⁴⁹ Blackstone, above n 47, 157–59. See also Burn, R, The Justice of the Peace and Parish Officer, vol II (London, Sweet 1831) (26th ed) 813 Google Scholar (‘[A]t the present day, it would probably be holden that no offence [of forestalling, regrating or ingrossing] is committed unless there is an intent to raise the price of provisions by the conduct of the party, for the mere transfer of a purchase in the market where it is made, the buying [of] articles before they arrive at a particular market, or the purchasing of a large quantity of a particular article, can scarcely be regarded as in themselves necessarily injurious to the community, and, as such, indictable offences’).

⁵⁰ Letwin (1953-1954), above n 17, 38–39.

⁵¹ See, eg Blackstone, above n 47, 158. Compare modern definitions of market power, eg, NCAA v Board of Regents, (1984) 468 US 109, fn 38 (‘[T]he ability to raise prices above those that would be charged in a competitive market’).

⁵² Russell, WO, A Treatise on Crimes and Misdemeanors (London, Stevens & Sons, 1843) 173 Google Scholar, emphasis added; note, again, the persistent dual conception of the individual’s economic and political rights.

⁵³ Blackstone, above n 47, 159.

⁵⁴ Pike, above n 32, 101.

⁵⁵ Girdler, JS, Observations on the Pernicious Consequences of Forestalling, Regrating, and Ingrossing (London, printed by Baldwin, H for Seeley, LB, 1800) 142 Google Scholar.

⁵⁶ Letwin (1953-1954), above n 17, 369.

⁵⁷ Thorelli, above n 25, 16.

⁵⁸ See, eg Price, above n 19, 38 (recording the protest of London grocers that a monopoly grant by Charles I had infringed ‘the right of a freeman of any London company to exercise any trade’); Malament, B, The ‘Economic Liberalism’ of Sir Edward Coke (1966–1967) 76 Yale LJ 1321, 1342CrossRefGoogle Scholar (noting Tudor conception of employment as an ‘inherent’ right of the English citizen); Erle, above n 9, 10–11 (discussing Coke’s own report of The Case of Monopolies, ‘where Lord Coke refers to a very ancient law, “You shall not take in pledge the nether and upper stone, quia animam suam apposuit tibi,” (Deut xxiv 6) and says that by this it appears that every man’s trade maintains his life, and that therefore he ought not to be deprived nor dispossessed of it any more than of his life’).

⁵⁹ See Holdsworth, W, A History of English Law, vol VII (London, Sweet & Maxwell, 1937–38) 56 Google Scholar (‘[T]he law as to contracts in restraint of trade had more than any other class of contracts, been moulded by changing ideas of public policy’).

⁶⁰ YB Pas 2 Hen 5, f 5, cited in Letwin (1953-1954), above n 17, 39.

⁶¹ (1601-02) 43 & 44 Eliz Roll 3217, 78 ER 1097.

⁶² Michell v Reynolds (1711) 10 Mod 131, (88 ER 610, 637, 600) (1711). This was not the first case in which a contract in restraint of trade was held to be lawful: that honour goes to Rogers v Parrey (1613) 2 Bulstrode 136, 80 ER 1012, in which we see yet again the hand of Edward Coke, and the ‘more decisive’ case of Broad v Jollyfe (1619) 17 Jac 1 Roll 1265, 79 ER 509. See Malament, above n 58, 1339.

⁶³ 88 ER 610. The case was re-argued the following year, and the judges declined to disturb their earlier opinion.

⁶⁴ Ibid, 660.

⁶⁵ Ibid, 661.

⁶⁶ Ibid, 664.

⁶⁷ [1894] App Cas 535.

⁶⁸ Ibid, 565.

⁶⁹ Compare Erle, above n 9, 24 (‘A person can neither alienate for a time his freedom to dispose of his own labour or his own capital according to his own will (see Hilton v Eckersley 6 Ell & Bl 47), nor alienate such freedom generally and make himself a slave’).

⁷⁰ See, eg, N Kroes, then European Commissioner for Competition, Tackling Cartels— A Never-Ending Task, speech of 8 October 2009 (‘Nothing is more fundamentally wrong in our field than a cartel’), available at <http://europa.eu/rapid/pressReleasesAction. do?reference=SPEECH/09/454&format=PDF&aged=0&language=EN&guiLanguage=en>, accessed on 6 July 2010; TO Barnett, then Assistant Attorney General for Antitrust, US Department of Justice, Perspectives on Cartel Enforcement in the United States and Brazil, speech of 28 April 2008 (‘We believe that detecting and prosecuting cartels should be the highest priority of an antitrust enforcement agency’), available at <http://www.justice.gov/atr/public/speeches/>, accessed on 6 July 2010; International Competition Network Cartel Working Group home page (‘At the heart of antitrust enforcement is the battle against hardcore cartels’), available at <http://www.internationalcompetitionnetwork.org/workinggroups/current/cartel.aspx>, accessed on 6 July 2010.

⁷¹ See generally Jaffe, LL and Tobriner, MO, The Legality of Price-fixing Agreements (1931– 1932) 45 Harvard Law Review 1164 CrossRefGoogle Scholar; Thorelli, above n 25, 27–35.

⁷² See generally Howell, G, The Conflicts of Capital and Labour (London, Chatto & Windus, 1878)Google Scholar. At one point, Howell records (at 29), ‘all the citizens of London were obliged to belong to some trade-gild’.

⁷³ Ibid, 52.

⁷⁴ Ibid, 55–56.

⁷⁵ Ibid, 56. Howell records that this new movement inspired some (unsuccessful) legislative attempts to rein in the private power-centres. See, eg, 15 Hen 6 c 6, 7 (restricting guild ordinances). See Howell, above n 72, 65.

⁷⁶ See 23 Edw 3 c 1, 3.

⁷⁷ 13 Richard II c 8, cited in Howell, above n 72, 60.

⁷⁸ 1 Jam 1 c 6, cited in Howell, above n 72, 81–82. The practice of market management by statute was not confined to wage-setting. Under Henry IV the supply of rural labour was boosted by a statute that forbade families to place a child as an urban apprentice unless their property interests exceeded a certain threshold: 7 Henry IV c 27.

⁷⁹ 34 Edw 3 c 9; 3 Hen 6 c 1; 2&3 Edw 6 c 15. See also Wright, RS, The Law of Criminal Conspiracies and Agreements (Philadelphia, Blackston Publishing Co, 1887) 4717–30Google Scholar.

⁸⁰ 2 & 3 Edw 6 c 15 (1549). (Remarkably, this statute appears to have remained in force until the early 19th century, but was rarely enforced). Jaffe and Tobriner, above n 71, 1167 and fn 11 (citing cases).

⁸¹ Letwin (1953-1954), above n 17, 48–49.

⁸² Erle, above n 9, 19.

⁸³ Thorelli, above n 25, 30–35; Letwin(1953-1954), above n 17, 48–49.

⁸⁴ Jaffe and Tobriner, above n 71, 1168.

⁸⁵ The immunisation of union activity from antitrust liability survives at 15 USC § 17 (‘The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws’).

⁸⁶ [1892] AC 25.

⁸⁷ Ibid, 33.

⁸⁸ Ibid, 39 (Lord Halsbury CJ).

⁸⁹ Ibid, 42 (Lord Watson).

⁹⁰ Ibid (Lord Watson).

⁹¹ Thorelli, above n 25, 40.

⁹² Ibid, 38 ff; Letwin (1953-1954), above n 17, 51–52. Vertical price-fixing, or ‘resale price maintenance’ as it is more commonly known, was never unlawful at common law: ibid, 48.

⁹³ See, eg, Wharton, F, A Treatise on the Criminal Law of the United States, vol II (Philadelphia, 1874) 900–901 Google Scholar (noting that it would ‘no doubt’ be ‘indictable, on general principles at common law, to engross and absorb any particular necessary staple or constituent of life so as to impoverish and distress the mass of the community for the purpose of extorting enormous personal wealth’, ‘[b]ut to sustain such a prosecution, the commodity must be a necessity, and it must be totally absorbed by the monopolizer’). But see Thorelli, above n 25, 36–37 (‘[I]t would not seem that [the doctrines of forestalling, regrating, and engrossing] were ever incorporated in the general body of American common law. Certainly they have never been relied on in any common law since the middle of the 19th century’ (footnotes omitted)); Stickney, A, State Control of Trade and Commerce by National or State Authority (New York, Baker, Voorhis & Co, 1897) 91–98 Google Scholar.

⁹⁴ Taft, WH, The Anti-Trust Act and The Supreme Court (New York, Harper and Row, 1914) 2 Google Scholar.

⁹⁵ Letwin (1953-1954), above n 17, 58.

⁹⁶ Thorelli, above n 25, 180, quoting 21 Cong Rec 3:2456–62.

⁹⁷ Ibid.

⁹⁸ See, eg, 21 Cong Rec 3:3146 (statement by Senator George F Hoar of Massachusetts of the Committee on the Judiciary, on the day of the Sherman Act’s passage by the Senate, that ‘We have affirmed the old doctrine of the common law in regard to all interstate and international commercial transactions’).

⁹⁹ This proposition sounds naive and even foreign to modern antitrust thought, but it is not clearly different in kind from modern EU law on excessive pricing, which appears to confer on the consumer a right to a ‘reasonable’ price compared to the value of the product or service to the consumer.

¹⁰⁰ This proposition, also, is not quite as bizarre as might be supposed: recall the vigorous protection of contracts and combinations in restraint of trade exemplified by the late 19th century English case law. Cf Jaffe and Tobriner, above n 71, 1171 (‘“Free trade” in England includes the freedom to suppress trade’).

¹⁰¹ See 21 Cong Rec 3:2723–32, cited in Thorelli, above n 25, 198.

¹⁰² See, eg, WE Kovacic, ‘The Intellectual DNA of Modern US Competition Law for Dominant Firm Conduct: The Chicago/Harvard Double Helix’ (2007) Columbia Business Law Review 1, 35 (‘Both schools [of antitrust scholarship] generally embrace an economic efficiency orientation’).

¹⁰³ ‘A reading of the congressional debates on the Sherman and Clayton Acts reveals no single thread of efficiency weaving together the whole of the fabric’: Elzinga, KG, ‘The Goals of Antitrust: Other Than Competition and Efficiency, What Else Counts?’ (1976–1977) 125 University of Pennsylvania Law Review 1191, 1191CrossRefGoogle Scholar.

¹⁰⁴ The role of acts of belief—including dogma, on the one hand, and imagination, on the other—in antitrust analysis should not be forgotten or underestimated. To take an obvious example, the term ‘market’—the transactional forum with defined borders that provides the starting point for every antitrust analysis—is an abstraction of the probable scope of uncertain choices and possible consequences set in a highly stylised imaginary landscape. Another debate, which is rarely presented, and into which we shall not enter in this chapter, is whether ‘market power’—discerned only in the effects of voluntary transactions that are entered into to the net benefit of each party—is properly referred to as a ‘power’ at all. Even the strict monopolist sells to a customer who values the product more highly than the money it costs him to buy it. See generally Lukes, S, Power: A Radical View , 2nd edn (London, Palgrave Macmillan, 2005)CrossRefGoogle Scholar; see also Rockefeller, above n 13, 40 (‘[Market power] is an imagined power, like witchcraft’).

¹⁰⁵ Bork, RH, The Antitrust Paradox (New York, Free Press, 1993) 90 Google Scholar; see also ibid, 109 (‘[A]ntitrust should concern itself solely with allocative and productive efficiency’).

^105a See, eg, Bergkamp, L, Liability and Environment (The Hague, Kluwer Law International, 2001) 81 Google Scholar (‘An efficiency argument for a particular liability rule necessarily involves public policy and wealth distribution issues.’).

¹⁰⁶ Ibid, 91: ‘the question of whether resources are employed in tasks where consumers value their output most’.

¹⁰⁷ Ibid: ‘the effective use of resources by particular firms’.

¹⁰⁸ These difficulties are of such scope and size that it is somewhat astonishing that they receive such little attention in mainstream antitrust discussion. See, eg, Armentano, DT, Antitrust: The Case for Repeal (Auburn, AL, Ludwig von Mises Institute, 1999) 19 Google Scholar: ‘[T]he enforcement of the antitrust laws is predicated on the mistaken assumption that regulators and the courts can have access to information concerning social benefits, social costs, and efficiency that is simply unavailable in the absence of a spontaneous market process. Antitrust regulation is often a subtle form of industrial planning and is fully subject to the “pretense-ofknowledge” criticism frequently advanced against government planning.’

¹⁰⁹ It is not at all clear to me, for example, that we can be certain that meeting the need of the consumers who would not buy at a monopoly price but who would buy at a cost price—the consumers, by definition, who derive the least value from the product—is the ‘most productive use’ of the flexible input resources that might, but for the monopoly price, be applied to meeting that demand.

¹¹⁰ Bork, above n 106, 105, acknowledges that ‘the goods or services concerned must not be ones that society outlaws for other reasons—addictive drugs or prostitution, for example’. But this is a very small aspect of the (much) larger point: that our conception of ‘useful’ value is a social and political conclusion from which the efficiency analysis must proceed, not the other way around. Governments routinely interfere with markets with the object or effect of modifying consumers’ value/price analysis in order to promote a ‘useful’ outcome in a host of ways, including prohibition (eg, illegal drugs); taxation (eg, alcohol and petrol); and subsidy (eg, agriculture and alternative energy). More broadly, antitrust law has been (and still is) subject to a host of exceptions and exemptions, notably but not exclusively in the United States, that protect, on socio-political grounds, various activities—from sports to shipping-line conferences, and from government petitioning activities to collective negotiation of certain music licences—from the scrutiny of the antitrust laws. Further, using price as a proxy for value assumes perfect information on the part of the purchasing party, and assumes away the various irrationalities and psychologies that distinguish human decision-making in the real world: advertising, prejudices, habit, etc. Moreover, there is absolutely no dynamic component to this measure of welfare: it assigns no value to the development of new markets, R&D and the like. R&D divisions frequently run for years at the kind of loss that would scandalise an efficiency analysis of this kind.

¹¹¹ Bork, above n 106, 110: ‘Those who continue to buy after a monopoly is formed pay more for the same output, and that shifts income from them to the monopoly and its owners, who are also consumers. This is not dead-weight loss due to restriction of output but merely a shift in income between two classes of consumers. The consumer welfare model, which views consumers as a collectivity, does not take this income effect into account. If it did, the results of trade-off calculations would be significantly altered.’

¹¹² Brandeis, L, The Curse of Bigness (New York, Viking Press, 1934) 105 Google Scholar.

^112a See JT Rosch, The Redemption of a Republican, FTC: Watch (June 1, 2009) (‘I have questioned the basic tenets of orthodox Chicago School law and economics…. In December 2006, for example, I suggested in remarks to the New York City Bar Association that the purpose of the antitrust laws is not to maximize societal welfare but is instead to protect consumers. Since then I have mused that the Supreme court has gone further than the European courts (and perhaps too far) in embracing Judge Bork’s tenets.’).

¹¹³ Gifford, D and Kudrle, R, ‘Rhetoric and Reality in the Merger Standards of the United States, Canada, and the European Union’ (2004-2005) 72 Antitrust Law Journal 423, 434ffGoogle Scholar.

¹¹⁴ Hayek, above n 6, 100–101.

¹¹⁵ See, eg, R Hewitt Pate, then Assistant Attorney General, Antitrust Division, US Dept of Justice, The Common Law Approach and Improving Standards for Analyzing Single Firm Conduct (23 October 2003) (‘There persists in some quarters uncomfortable with discussing more objective modes of decision-making a fondness for what might be called antitrust sloganeering. We are all familiar with some of the slogans that are bandied about: Has someone cut off the oxygen from a competitor? Have they had the rug pulled out from under them? Has the playing field been made something other than level? Is competition other than on the merits? I am certainly in favor of oxygen and level playing fields and people having rugs, but it is not evident to me how these turns of phrase help in advising a business how to comply with the law’).

^115a Compare Areeda, P & Hovenkamp, H ¶111d (New York, Aspen, 2000) (‘As a goal of antitrust policy, “fairness” is a vagrant claim applied to any value that one happens to favor.’)Google Scholar.

¹¹⁶ See, eg, Pitofsky, R, ‘The Political Content of Antitrust’ (1978–1979) 127 University of Pennsylvania Law Review 1051, 1065CrossRefGoogle Scholar (‘Even if economic theory were clear and consistent, economic theory provides no system for reliably determining economic effect’).

¹¹⁷ Cf, eg, Brandeis, above n 113, 105 (‘The only argument that has been seriously advanced in favor of private monopoly is that competition involves waste … Undoubtedly competition involves waste. What human activity does not? The wastes of democracy are among the greatest obvious wastes, but we have compensations in democracy which far outweigh that waste and make it more efficient than absolutism’). See also, eg, Schwartz, LB, ‘Institutional Size and Individual Liberty: Authoritarian Aspects of Bigness’ (1960–1961) 55 Northwestern University Law Review 4, 17Google Scholar (‘The efficiency of dictatorship is proverbial’).

¹¹⁸ United States v Aluminum Co of America (2d Cir 1945) 148 F2d 416, 427.

¹¹⁹ (1890) 21 Cong Rec 2460.

¹²⁰ See, eg, Elzinga, above n 104, 1194–96 (‘[I]t is notable that antitrust enforcement generally serves to help those at the low end of the income distribution range without decreasing efficiency’; ‘Over forty percent of the holdings of the wealthiest families has been attributed to the effects of past monopoly. Had antitrust been more potent in the past and prevented this wealth accumulation, incomes today would be more evenly distributed without the concomitant efficiency tradeoff that may result if incomes are redistributed directly by government fiat... In sum, the pursuit of efficiency goals through antitrust enforcement is consistent with the objective of equitable distribution of income’ (footnotes omitted)).

¹²¹ United States v Brown University (3d Cir 1993) 5 F3d 658.

¹²² Ibid, 678.

¹²³ (1890) 21 Cong Rec 2569.

¹²⁴ Thorelli, above n 25, 608. See also, eg, FTC v Sun Oil Co (1963) 371 US 505, 520 (explaining that the purpose of the Robinson-Patman Act is the ‘preservation of the equality of opportunity as far as possible to all who are usefully employed in the service of distribution and production’).

¹²⁵ Lande, RH, ‘Consumer Choice as the Ultimate Goal of Antitrust’ (2000–2001) 62 University of Pittsburgh Law Review 503 Google Scholar. See also Averitt, NW and Lande, RH, ‘Using the “Consumer Choice” Approach to Antitrust Law’ (2007) 74(1) Antitrust Law Journal 175 Google Scholar.

¹²⁶ Hayek, above n 6, 127–28.

¹²⁷ Letwin (1953–1954), above n 17, 3.

¹²⁸ See, eg Porter, ME, The Competitive Advantage of Nations (New York, Free Press, 1998) 117ffCrossRefGoogle Scholar.

¹²⁹ See, eg, Klor’s, Inc v Broadway-Hale Stores, Inc (1959) 359 US 207.

¹³⁰ Pitofsky, above n 117, 1051.

¹³¹ Kirkwood, JB and Lande, RH ‘The Fundamental Goal of Antitrust: Protecting Consumers, Not Increasing Efficiency’ (2008-2009) 84 Notre Dame Law Review 191, 196Google Scholar.

¹³² Ibid, 212. See also ibid, 213ff (reviewing case law).

¹³³ Brandeis, above n 113, 141.

¹³⁴ Friedman, M, Capitalism and Freedom (Chicago, University of Chicago Press, 2002) (40th edn)CrossRefGoogle Scholar (first published 1962) 8 (‘On the one hand, freedom in economic arrangements is itself a component of freedom broadly understood, so economic freedom is an end in itself. In the second place, economic freedom is also an indispensable means toward the achievement of political freedom’).

¹³⁵ (1950) 96 Cong Rec 16452.

¹³⁶ Pitofsky, above n 117, 1051.

¹³⁷ Friedman, above n 135, 2.

¹³⁸ Ibid, 33–34.

¹³⁹ Elzinga, above n 104, 1200.

¹⁴⁰ Mercantile Texas v Bd of Governors of the Federal Reserve System (5th Cir 1981) 638 F2d 1255, 1271.

¹⁴¹ Thorelli, above n 25, 180, quoting 21 Cong Rec 3:2456–62.

¹⁴² Pitofsky, above n 117, 1057; Elzinga, above n 104, 1200–02 (‘Even if there are efficiency gains from conglomerate [mergers], these benefits must be balanced against the potential that the mastodonic conglomerate has for obtaining anticompetitive advantages and special favors from the government’). See also Schwartz, above n 118.

^142a See Dissenting Statement of Commissioner Pamela Jones Harbour, Google/DoubleClick, 9–12, available at <http://www.ftc.gov/os/caselist/0710170/071220harbour.pdf>, accessed 12 October 2010.

^142b Harbour, PJ and Koslov, TI, ‘Section 2 in a Web 2.0 World: An Expanded Vision of Relevant Product Markets’ (2010) 76 Antitrust Law Journal 769, 792–94Google Scholar. See also ibid at 797 (advocating a ‘more integrated approach’ to privacy and competition).

¹⁴³ OG Hatch, ‘Antitrust in the Digital Age’, remarks of 5 February 1998, available at <http://www.pff.org/issues-pubs/futureinsights/fi5.1antitrustdigitalage.html>, accessed 6 July 2010.

¹⁴⁴ See (1950) 96 Cong Rec 16452, quoted in Pitofsky, above n 117, 1062.

¹⁴⁵ Hayek, above n 6, 205.

¹⁴⁶ See (1949) 95 Cong Rec 11486, quoted in Pitofsky, above n 117, 1062.

¹⁴⁷ Pitofsky, above n 117, 1055. See generally Mastalir, RW, ‘Regulation of Competition in the “New” Free Markets of Eastern Europe: A Comparative Study of Antitrust Laws in Poland, Hungary, Czech and Slovak Republics, and Their Models’ (1993-1994) 19 North Carolina Journal International Law & Commercial Regulation 61 Google Scholar; Stedman, JC, ‘The German Decartelization Program—The Law in Repose’ (1950) 17(3) University of Chicago Law Review 441 CrossRefGoogle Scholar. But see also Landau, Z and Tomaszewski, J, The Polish Economy in the Twentieth Century (London, Croom Helm, 1985) 92–93 Google Scholar (noting the shift in government policy toward cartels from a supportive stance at the beginning of the Depression toward opposition and ultimately to ineffectual ‘finger wagging’).

¹⁴⁸ Thorelli, HB, ‘Antitrust in Europe: National Policies After 1945’ (1958-1959) 26 University of Chicago Law Review 222, 222CrossRefGoogle Scholar. See also, eg, Wilson, JM, Global Price Fixing: Studies in Industrial Organization, 2nd edn (Heidelberg, Springer-Verlag, 2008) 6 Google Scholar (‘[T]he growing realization of the symbiotic relationship between German cartels and the rise of National Socialism stimulated a renewed animus toward cartels [in late 1930s America]’).

¹⁴⁹ Friedman, above n 135, 16.

¹⁵⁰ See United Nations News Center, ‘UN expert spotlights “abysmal” human rights situation in DPR Korea’, Press Release of 22 October 2009, available at <http://www.un.org/apps/news/story.asp?NewsID=32681&Cr=dprk&Cr1>, accessed 7 July 2010; United Nations, Report of the Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea (A/64/224), available at <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/440/61/PDF/N0944061.pdf>, accessed 7 July 2010.

¹⁵¹ Conquest, R, The Great Terror: A Reassessment, 3rd edn (London, Pimlico, 1990) 20, quoting Sovetskaya kul’tura (1 October 1988)Google Scholar.

¹⁵² See Sen, A, Development As Freedom (Oxford, Oxford University Press, 1999)Google Scholar. See also Sen, A, The Idea of Justice (London, Allen Lane, 2009) 253ffGoogle Scholar.

¹⁵³ Hayek, above n 6, 206.