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Prof. Hovenkamp advocates for output-based consumer welfare principle in “Antitrust’s Borderline”

October 27, 2020

Prof. Herbert Hovenkamp argues for a properly defined consumer welfare principle so that antitrust law can fulfill its statutory purpose.

In his recently released paper “Antitrust’s Borderline,” James G. Dinan University Professor Herbert Hovenkamp argues for a properly defined consumer welfare principle so that antitrust law can “achieve its statutory purpose, which is to pursue practices that injure competition.”

Hovenkamp notes that although antitrust’s consumer welfare principle is accepted by the Supreme Court and widely among other writers, “it means different things to different people.” He maintains that “output rather than price should be the relevant variable” as higher output benefits consumers, employees, and smaller firms alike.

“The consumer welfare principle in antitrust is best understood as pursuing maximum output consistent with sustainable competition,” writes Hovenkamp.

Moreover, he notes that while the aspiration of antitrust as a “more general social justice statute” is understandable and even laudable as “it permits people to obtain a result from the judiciary that they cannot get through legislation.” Antitrust, however, is “not the best vehicle” to achieve these goals, however, he writes.

Hovenkamp, who holds a joint appointment in the Wharton School, is a Fellow of the American Academy of Arts and Sciences. In 2008, he won the Justice Department’s John Sherman Award for his lifetime contributions to antitrust law, and in 2012, he served on the ABA’s Committee to advise the President-elect on antitrust matters.

His principal writing includes The Opening of American Law: Neoclassical Legal Thought, 1870-1970 (Oxford, 2015); Antitrust Law (formerly with Phillip E. Areeda and Donald F. Turner) (22 vols., Aspen 2008-18); Principles of Antitrust (West, 2017); Creation Without Restraint: Promoting Liberty and Rivalry in Innovation (Oxford, 2012, with Bohannan); The Making of Competition Policy (Oxford, 2012, with Crane); The Antitrust Enterprise: Principle and Execution (Harvard, 2006); Federal Antitrust Policy: The Law of Competition and Its Practice (West, 5th ed. 2015); IP and Antitrust (2 vols., Aspen, 2017, with Janis, Lemley, Leslie, and Carrier); and Enterprise and American Law, 1836-1937 (Harvard, 1991).

He has consulted on numerous antitrust cases for various government entities and private plaintiffs and has also co-authored casebooks in antitrust, property law, and a free open source casebook on innovation and competition policy.

Read more Law School faculty papers and publications.