The Commensurability Myth in Antitrust

INTRODUCTIONAt its heart, antitrust law believes it is exceptional. Unlike most areas of regulation where rules must trade off costs and benefits different in kind, antitrust claims to pursue one single goal: competition.1 Courts often endorse the idea that the values traded off in regulation-the procompetitive effects and the anticompetitive effects-are commensurate. For example, courts frequently characterize Sherman Act § 1 as condemning restraints on trade having a net anticompetitive effect, and condoning those whose effects sum to a neutral or procompetitive effect. This supposedly unitary goal of antitrust-to facilitate competition-allows the law to appear to avoid the murky, value-laden compromises struck by other areas of regulation.But antitrust law is not exceptional. Even within the nowdominant paradigm that antitrust pursues only economic goals,2 value judgments are unavoidable. What are typically offered in antitrust cases as procompetitive and anticompetitive effects are rarely two sides of the same coin, and there is no such monolithic thing as competition that is furthered or impeded by competitor conduct. In fact, competition-whether defined as a process or as a set of outcomes associated with competitive markets-is multifaceted. Antitrust law often must trade off one kind of for another, or one salutary effect of (such as price, quality or innovation) for another. And in so doing, antitrust courts must make judgments between different and incommensurate values.The incommensurability problem is not entirely unrecognized in antitrust discourse, but it is downplayed in a manner harmful to policy and doctrine.3 Antitrust scholars acknowledge-and sometimes even highlight-the incomparability of the effects they measure.4 Judicial opinions occasionally, although less often, contain explicit discussions of the disparate competitive values at stake.5 But more often, these judgments are implicit.The absence of attention to the fact that procompetitive and anticompetitive effects, as they are presented in an antirust suit, are usually incommensurate, and the absence of debate about how to trade them off means that antitrust law is under-theorized. Rhetoric of commensurability in antitrust has made it unpopular for judges to acknowledge the use of value judgments in deciding antitrust cases.6 This has pushed important debates about those values into the subtext of antitrust opinions rather than allowing for the full and open discussion that they merit. It has also led to a set of doctrines that courts use to avoid the appearance of judgment, which distort antitrust litigation usually in favor of defendants. These evasive maneuvers have made a mess out of questions such as when the burden of production shifts from plaintiff to defendant, which arguments require empirical proof or a rigorously defined market, and what kinds of procompetitive justifications are categorically illegitimate.This Article uses Sherman Act § 1 liability to illustrate the incommensurability of most pro- and anticompetitive effects in antitrust litigation. Although the problem pervades antitrust law and policy, § 1 doctrine nicely illustrates the (false) exceptionalism of antitrust. The rhetoric of the Rule of Reason7 (the dominant mode of §1 analysis) exemplifies the problem: it claims to protect agreements that enhance and condemn those that destroy it,8 as if competition referred to one single value that antitrust must promote. But below the surface, the cases and rules actually do struggle with how to trade off very different benefits and costs of agreements among competitors. Examples include trading off quantitative for qualitative measures of consumer welfare, balancing present and future competitive effects, and trading off competitive effects on different classes of consumers. These latent debates play out in cases considering restraints that suppress intrabrand while stimulating interbrand competition,9 that trade a free market with failures for a self-regulated market with suppressed rivalry,10 and that create a new product by otherwise restricting competition. …