The antitrust curse of bigness

Barak Orbach, Grace Campbell Rebling

Research output: Contribution to journalArticle

13 Scopus citations

Abstract

In 1882, Standard Oil's General Solicitor invented the corporate trusts that inspired the birth of the antitrust discipline. The public aversion to trusts in the United States gave the field its enduring and uniquely American name. As the discipline matured, distrust of business size took root in cases and doctrines. Justices Louis Brandeis and William Douglas wrote the narrative into early case law and it remained embedded in the field even as economics became the antitrust methodology. Economics merely transformed the fear from a concern about absolute size to one of relative size (market shares). While size should be an irrelevant consideration in antitrust analysis, it still mistakenly serves as a driving force behind the law. This Article studies how the fear of bigness-of absolute or relative size-has shaped and confused analytical perceptions of antitrust, established and sustained no-fault monopolization theories, and contributed to various doctrinal oddities. The American discipline might owe its birth to the fear of size, but this fear has been a burden and a curse on the development of sound antitrust policies.

Original languageEnglish (US)
Pages (from-to)605-656
Number of pages52
JournalSouthern California Law Review
Volume85
Issue number3
StatePublished - Mar 1 2013

ASJC Scopus subject areas

  • Law

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  • Cite this

    Orbach, B., & Rebling, G. C. (2013). The antitrust curse of bigness. Southern California Law Review, 85(3), 605-656.