Antitrust populism — also known as hipster antitrust and neo-brandeisian antitrust — attempts to challenge the well-established bases of antitrust law. Specifically, antitrust populists attack the consumer welfare standard, which they claim is either ineffective or insufficient to handle alleged new threats posed by firms, particularly those in the tech sector.
ICLE’s scholars believe that in general the consumer welfare standard and other modern antitrust doctrines that emerged from over a century of legal and economic experience are the most effective way to assess a wide variety of alleged anticompetitive behaviors. Meanwhile, to the extent that the consumer welfare standard appears unable effectively to handle alleged new threats, it is not due to the application of economic analysis of anticompetitive behavior per se; rather, it likely results from difficulties incorporating new data into existing models. As such, rather than throwing out the consumer welfare standard, the better approach would be for academics and enforcement officials to consider how best to adapt their models.
ICLE closely follows this debate and actively engages with it. Our scholars undertake detailed investigations of the role of new technologies and associated competition policy concerns. They then seek to deploy their research in ways that more appropriately frame those concerns without jettisoning a half-century or more of legal and economic learning.