The Antitrust Religion: A Conversation with the Author [Podcast Episode #15]

In this episode of Eye to Eye, I sit down with Edwin Rockefeller, author of The Antitrust Religion, to discuss his hard-hitting, top-to-bottom criticism of antitrust law and the “community” of lawyers, regulators, economists, and academics who interpret its mysteries.

Rockefeller speaks from wide knowledge and experience. After a brief stint on the Federal Trade Commission’s staff, he spent forty years (1961 – 2001) as an antitrust lawyer in private practice, reaching the highest levels of the profession, including chairmanship of the antitrust section of the American Bar Association.

Upon retirement, he decided to take a fresh look at the legal realm whose doctrines had puzzled and frustrated him for so many years. The result was The Antitrust Religion, published in 2007, an unflinching assessment whose findings should be alarming to all of us.

Rockefeller’s analysis spares no one. Antitrust, he maintains, is a house of cards, erected on a set of beliefs no more susceptible to proof than is a Christian’s belief in the Immaculate Conception. Foremost among the antitrust religion’s credos is the “Standard Oil legend,” a set of stories about monopolistic behavior that history shows never happened.

Antitrust, Rockefeller observes, gains adherents by giving sinister names to rational phenomena. For example, the Sherman Act of 1890 makes every contract a crime. And though the courts declare they will only punish “unreasonable” conduct, the law contains no clear standards to guide businessmen’s conduct. In court, therefore, “Everything is relevant and nothing is determinative” — a prescription for arbitrary, politicized adjudication.

In some areas I would differ with the author’s viewpoint. For example, he holds out the possibility that antitrust can have good effects and believes research is necessary to decide the issue, whereas I hold that by its nature antitrust cannot achieve anything good. Moreover, Rockefeller has no program of reform and doesn’t expect the laws to be changed, whereas I urge repeal of all antitrust statutes, the sooner the better.

But nothing I say should be taken to diminish my respect for this author. It took tremendous courage to launch an extended intellectual critique of the entire profession in which he had made his reputation. Astonishingly, the trenchant criticisms in The Antitrust Religion were met not with outrage or disagreement, but with silence. In my view, that lack of response speaks poorly for the antitrust “community” and shows that they are not open to reasoned debate about the legitimacy of their enterprise.

More to explore:

John S. McGee, Predatory Price Cutting: The Standard Oil (N.J.) Case

Thomas A. Bowden, “Antitrust: The War Against Contract,” in The Abolition of Antitrust

Image: Jon Meyers via Cato Institute