Traditionalists and progressives will both lose out if they favour delegitimization over dialogue
I’m writing this from Washington DC where the American Bar Association is holding its annual antitrust conference. It’s an event that brings together lawyers, economists and others from across the globe working on an area of policy that is taking an ever higher profile.
But at a time when so many of us are conscious of increasing polarisation in our politics and our societies, I worry that the antitrust world is in the midst of its own culture war and that it is unlikely to have a happy ending.
Before you accuse me of hyperbole, I recognise that there have been plenty of vigorous debates over antitrust in the past. In the US, the early proponents of the Chicago school did not exactly get an easy ride at first from academics or enforcers. And in Europe, when the European Commission stepped onto the global stage it made decisions which caused significant controversy across the Atlantic.
On one level, therefore, today’s debates are nothing new.
But I am struck that some of our current debates contain elements not just of a policy debate but of a culture war.
In particular, two characteristics of such culture wars are a tendency to delegitimise your opponent rather than to rebut their arguments; and to avoid dialogue, instead relying on the affirmation of the in-group.
We can see elements of this in the argument between what, for simplicity’s sake, I will call traditionalists and progressives. For many progressives, often found more amongst academics and some enforcers, there is a concern that competition is weakening, something has gone wrong in enforcement and we need to get tougher. For traditionalists, often found more amongst practitioners, the response is that, hold on, we mustn’t go back to the bad old days of unclear rules or arbitrary enforcement.
Neither of these arguments refutes the other. In fact, there’s a lot of truth in both of them. Yet rather than a good faith debate about how we strike the right balance, too often we all end up talking in echo chambers with those who already agree with us. Or there can be a temptation to delegitimise your opponent rather than engage with their arguments.
For example, I find some of the personal criticism directed at Lina Khan deeply distasteful. Similarly, I don’t think someone’s views should just be ignored because they happen to work in private practice.
The antitrust community has a lot of bright people with integrity – among enforcers, academics and practitioners – and I think we can probably all do a bit better here. In that spirit, I wanted to share two thoughtful contributions that I enjoyed recently by two people with different views on the current challenges.
Cristina Caffara recently appeared on the ABA’s Our Curious Amalgam podcast. Cristina has had an extremely successful career as an economic consultant and as a wider thought-leader, and in this podcast she explains with candour how her views developed over time, from what she calls an ‘idealistic’ view of how rigorous economic analysis could provide a more objective basis for decision-making by technocratic enforcers instead of subjective determinations by politicians, to a concern that the primacy of economics has led to unintended consequences.
Meanwhile, Herbert Hovenkamp recently published a paper criticising what he terms a populist rather than a progressive approach to antitrust. Hovenkamp is a world-renowned academic in the field, and in his paper he reminds us that economics is not just “a brief for defendants” and that “economics can point antitrust in both pro- and anti-enforcement directions.”
What I like about both contributions by these leaders in the field is their commitment to using economics wisely to get to the right answer. And that gets to one of my biggest worries about the future of antitrust enforcement.
In many jurisdictions, we have moved from a position where decisions on merger cases were made on the basis of unclear or arbitrary criteria, perhaps by politicians who might be influenced by lobbying, to one where there are clear standards judged by independent, expert decision-makers. But we cannot take the continuation of that position for granted.
There is a significant literature exploring which kinds of policy decisions can sustainably be delegated by politicians to independent authorities. Several themes recur, including that the decisions involved should be ones requiring technical expertise rather than value judgments; and that there should be a high degree of support for the objectives across the main political parties.
But if the technocrats themselves no longer agree on the ultimate purpose of antitrust, and if their debates seem to focus less on technical economic questions and more on broader political and societal issues, the political consensus for delegation to independent bodies is likely to break down. Democratically elected politicians are likely to step in and say they are better placed to decide such questions, and the political parties will offer different views on how to resolve them.
Antitrust can be the subject of heated debate over its ends and values, or it can be an issue where decisions are made by unelected technocrats, but it cannot be both. If you favour independent, expert decision-making, free from political lobbying – as I do – it is not in your interests for antitrust to have a culture war.
