Judge Learned Hand, whose decisions in contract and corporate law are still read with reverence, laid out the basic federal antitrust framework which was endorsed by the supreme court in 1946 and 1968 and governed our economy for most of the 20th century. In mandating the breakup of the aluminum monopoly of Alcoa in 1945, Hand concluded that monopoly power, in and of itself, was illegal. He explained that the Sherman Act is a law prohibiting monopolies, full stop, no matter whether they are predatory. He pointed out that Congress updated the antitrust laws four times in the 20th century to hit back at courts who attempted to narrow them.
Antitrust theory is dominated by reactionary yet often wildly inconsistent thinkers. Hovenkamp, who for decades resisted any action to rein in large technology firms, argued a year ago that breaking up these giants would send the economy back to “the Stone Age”. This week, reversing his position, Hovenkamp conceded that breaking up Facebook is now warranted – revealing his entire school of thought as largely a reactionary force torn between bending to concentrated financial power and scandalous headlines of abusive market power.
It is encouraging that the government is seeking to break up Google and Facebook, and that policymakers are rejecting flawed legal theorizing. But the resistance to restoring our anti-monopoly tradition runs much deeper than Robert Bork and his rightwing legacy. As we’ve seen, it’s just as entrenched within the centrist academic and judicial citadels of well-meaning technocrats who carry a deeply ingrained fear of too much democratic influence over the economy.