The House that Hovenkamp Built is Sound : The Case Against Proposed Legislative Reforms of the US Antitrust Laws

Perhaps no living person has had greater influence on US antitrust doctrine than Herbert Hovenkamp. In fleshing out the sparse US antitrust statutes over the course of his distinguished career, Professor Hovenkamp has embraced four guiding principles: that antitrust’s goal is to promote consumer welfare by ensuring output-enhancing market competition; that antitrust should preclude the enhancement of market power but not the mere extraction of surplus; that legal directives to prevent market power enhancement should be crafted to minimize the sum of error and decision costs; and that liability rules should require an “enquiry meet for the case,” with elements and proof burdens determined according to our ever-expanding understanding of the economic effects of business practices. At present, a chorus of ideologically diverse voices is calling for legislative reform of US antitrust law to account for “unique” digital markets and a purported market power crisis. The most significant reform proposals disregard one or more of the fundamental principles underlying Hovenkampian antitrust and should be rejected