Antitrust and Equal Liberty

As Robert Bork once asserted, “Antitrust policy cannot be made rational until we are able to give a firm answer to one question: What is the point of the law—what are its goals? Everything else follows from the answer we give.” The appropriate answer, however, is not, as Bork suggested, consumer welfare. Instead, antitrust should serve the equal liberties that citizens give themselves when they engage in economic activity. Given the complexity and interconnectivity of the economy, however, the deliberations in which citizens and policymakers engage will produce a messy cacophony. While leaving the precise content and scope of citizens’ equal liberties open, this article provides a cognitive framework that should nevertheless prove useful as they make sense of the noise. It explains that while business can claim associational freedoms, those freedoms challenge the autonomy of rights of corporate insiders and outsiders alike and should be constrained accordingly. Indeed, this is how citizens have historically understood antitrust—and they can and should do so again.