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That lawyer, Lewis Powell, later got a seat on the Supreme Court, after intensive lobbying, and went on to contribute to many decisions that encouraged monopoly formation. They subscribe to a theory that says that if the question of antitrust enforcement is up for grabs, it will be captured by big business.Īs if that weren't enough, there's a smoking gun, the "Powell memo," in which a corporate lawyer advised the US Chamber of Commerce to increase and harmonize its lobbying, particularly around who gets federal judgeships. In truth, the whodunnit for the murder of antitrust enforcement has a pretty obvious set of perps. The "enlightened technocrat narrative" asks us to believe that antitrust is an exception to the tendency of regulators to be captured by the firms they are charged with regulating – especially when those firms are concentrated, making it easier for them to coordinate their policy preferences. Under "public choice theory," Chicago School economists predict that regulation will inevitably come under the sway of regulated industries, who will suborn their regulators to make them do their bidding, to the detriment of the public interest.
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What's more, this outcome is theoretically consistent with the Chicago School's own orthodoxy. Instead, it was a self-accelerating mix of bribery and propaganda, funded by big businesses, which grew even bigger as a result. In other words, the complete reversal in antitrust enforcement in the US was not the result of better arguments, nor was it the result of democratic deliberation. Instead, the change in antitrust can be causally linked to an increase in lobbying, a revolving door between regulators and the industries they regulate, and lavish "educational" programs aimed at judges that included luxury holidays.
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The confirmation hearings for regulators and judges
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That is the "enlightened technocrat narrative," and, as a narrative, you can be forgiven for assuming that it is not empirically testable. 40+ years ago, fringe economists and other ideological entrepreneurs from the University of Chicago won the argument, publishing such a rigorous defense of monopolies as "efficient" that lawmakers, regulators and judges had no choice but to change their ways. There's a widely received narrative about what happened to antitrust law. In the years since, it has been largely comatose – right up until the very recent past, when the Biden administration began to take muscular – but very belated – action to restore a modicum of competition to the economy.