Competition Policy in America History, Rhetoric, Law

by Peritz, Rudolph J. R.

• ISBN13: 9780195144093
• ISBN10: 0195144090
• Edition: Revised
• Format: Paperback
• Copyright: 2001-04-05
• Publisher: Oxford University Press

Summary

Americans have long appealed to images of free competition in calling for free enterprise, freedom of contract, free labor, free trade, and free speech. This imagery has retained its appeal in myriad aspects of public policy--for example, Senator Sherman's Anti-Trust Act of 1890, Justice Holmes's metaphorical marketplace of ideas, and President Reagan's rhetoric of deregulation. In Competition Policy in America, 1888-1992 , Rudolph Peritz explores the durability of free competition imagery by tracing its influences on public policy. Looking at congressional debates and hearings, administrative agency activities, court opinions, arguments of counsel, and economic, legal, and political scholarship, he finds that free competition has actually evoked two different visions--freedom not only from oppressive government, but also from private economic power. He shows how the discourse of free competition has mediated between commitments to individual liberty and rough equality--themselves unstable over time. This rhetorical approach allows us to understand, for example, that the Reagan and Carter programs of deregulation, both inspired by the rhetoric of free competition, were driven by fundamentally different visions of political economy. Peritz's historical inquiry into competition policy as a series of government directives, inspired by two complex yet distinct and sometimes contradictory visions of free competition, provides an indispensable framework for understanding modern political economy-- whether political campaign finance reform, corporate takeover regulation, or current attitudes toward the New Deal Legacy. Competition Policy in America will be of great interest to lawyers, historians, economists, sociologists, and policy makers in both government and business.

Author Biography

Rudolph J. R. Peritz is Professor of Law at New York Law School. He has been a Langdell Fellow at Harvard Law School, as well as an Assistant Attorney General for the state of Texas. He has written and spoken widely on competition policy, antitrust history, and computer law and policy.

Table of Contents

Introduction	3	(6)
Public Debate About Competition Policy, 1888-1911: Free Competition and Freedom of Contract	9	(50)
The Sherman Act Debates, 1888-1890: From Concerns about Industrial Liberty and Fair Price to a Statute with Common-law Language and Uncommon Remedies	13	(13)
The Sherman Act in the Federal Courts, 1890-1911: Cartels and Labor Unions, Trusts and the Limits of Majoritarianism	26	(33)
The Era of Cooperative Competition, 1911-1933: Trade and Labor Associations, Political Majorities, and Speech Rights	59	(52)
The Political Economy of Political Majorities	63	(12)
The Political Economy of Trade Associations	75	(14)
The Political Economy of Labor Associations	89	(11)
The Political Economy of Speech: ``Free Trade in Ideas''	100	(6)
Epilogue: The Emergence of Postclassical Economics	106	(5)
The New Deal's Political Economy, 1933-1948: From Organic Body Politic to Unified Body Economic	111	(70)
The Early New Deal, 1933-1935: The National Industrial Recovery Act and an Organic Body Politic	115	(27)
The Later New Deal, 1935-1948: The Consumer and a Unified Body Economic	142	(36)
American Political Economy after the Close of the Second World War	178	(3)
Competition, Pluralism, and the Problem of Persistent Oligarchy, 1948-1967	181	(48)
Economic and Political Discourses of Competition	182	(9)
Jurisprudential Currents: The Processes of Pluralism as Consensus	191	(4)
Congress and Industrial Concentration: Anti-Merger Legislation as Compromise	195	(4)
The Supreme Court's Competition Policies: Genealogies of Agreement, Images of the Market, and a Commitment to Equality	199	(30)
Rhetorics of Free Competition, 1968-1980: Efficiency, Property Rights, and Equality	229	(36)
The Nixon-Ford Years, 1968-1976: Industrial Concentration, the Marketplace of Ideas, and the Ascendancy of Chicago-School Law and Economics	231	(20)
The Carter Years, 1977-1980: Deregulation, Populism, and Efficiency Logics	251	(14)
Rhetorics of Free Competition, 1980-1992: Free Market Imagery, Corporate Control, and the Problem of Equality	265	(36)
The Federal Trade Commission: From ``Social'' to ``Economic'' Regulation	271	(1)
Antitrust Law: From Regulation of Commercial Competition to Restraint of Political Power	272	(10)
The Theory of PluPerfect Competition: Contestable Markets	282	(2)
Corporations and Securities Law: The New Site for Commercial Competition Policy	284	(6)
The Marketplace of Ideas: Property Rights and the Problem of Equality	290	(11)
Concluding Thoughts: On the Limits of Competition Policy	301	(4)
Afterword. The New Economy at Century's End: Market Access, Innovation, and Being Bill Gates	305	(26)
Notes	331	(66)
Index	397