Post-Chicago Antitrust: A Review and Critique

Monday, January 1st, 2001 at 12:00 am by Herbert Hovenkamp
Herbert Hovenkamp, Post-Chicago Antitrust: A Review and Critique, 2001 Colum. Bus. L. Rev. 257

The Chicago School of antitrust analysis is the most coherent and elegant ideology that antitrust has ever experienced. One must admire its simplicity, as well as its confidence in markets and its optimism. Nevertheless, those who found markets to be somewhat messier and Chicago economics less robust, began in the 1980s to call for a “post-Chicago” antitrust policy that would take the best that the Chicago School had to offer as a point of departure, and then develop an antitrust policy that was more sensitive to market imperfections. This could then enable anticompetitive behavior by dominant firms, that would take the competitive threats of mergers more seriously, and that would acknowledge the anticompetitive potential of at least a few vertical restraints.

In the subsequent decade and a half, academic writers in abundance and courts in smaller numbers have responded with post-Chicago theory and legal doctrine that is certainly impressive in its amount, if not always in its quality. At the same time, a great deal of Chicago antitrust has “stuck” — so much that one gets the impression that for some doctrinal changes there is no turning back. For example, the per se rule against vertical nonprice restraints or maximum resale price maintenance will probably never be revived, no matter how great the triumph of post-Chicago antitrust.

But in any event, that is not what the best of post-Chicago antitrust is all about. Post-Chicago antitrust should not be evaluated as a throwback to an earlier area, but as an attempt to move on. This article seeks to evaluate post-Chicago antitrust from that perspective.

Author Information

Ben V. and Dorothy Willie Professor of Law and History, University of Iowa