Fairness and Antitrust Reconsidered: An Evolutionary Perspective
For many American jurists and scholars, the notion that antitrust should incorporate moral norms of fairness is anathema. They believe that supposedly "non-economic goals" such as fairness have no place in America's single-minded focus on economics, consumer welfare, and allocative efficiency. This article reconsiders this position from an evolutionary perspective. After discussing the arguments for and against applying evolutionary norms of fairness in antitrust cases, the article recommends that courts and antitrust regulators begin applying an evolutionary analysis instead of the static economic consumer and total welfare norms in vogue today. The new focus would be on fairness norms, intent, and competitve harm. The article then addresses four recent Supreme Court antitrust cases that likely would have been decided differently applying such an analysis. The article concludes that by paying more attention to fairness, intent, and competitive harm, American antitrust can again become a positive force in building and sustaining "free and fair" competitive 21st century markets.
Thomas J. Horton. Fairness and Antitrust Reconsidered: An Evolutionary Perspective 44 McGeorge L. Rev. ___ (forthcoming)(2013).