The article argues that Trumpian populism could presage the end of an 80-year era in antitrust enforcement and lead to long term instability in antitrust enforcement policy, which no longer seems settled and technocratic. Published in Antitrust LJ and also available at ssrn.com/abstract=562... 3/3

They say their approach is “conservative” but it differs from that of the Chicagoans who have been the primary conservative voices since the Reagan admin. Instead, Trumpian populist rhetoric on antitrust reflects New Right thinking and recalls the Lochner era of constitutional interpretation. 2/3

The HMT refines the demand substitution focus in the caselaw (e.g., duPont (Cellophane)) by suggesting a conceptual metric to determine how much demand substitution is too much to define a market. Looking just to Brown Shoe doesn't tell you how to think about that.

I see the HMT as differing from Brown Shoe for a different reason: The HMT looks only to evidence about a single economic force, demand (buyer) substitution, while some Brown Shoe factors are about other economic forces. As you say, both approaches integrate qualitative & qualitative evidence.

Agreed—market def in this case seems too fact-bound to be a good candidate for cert.

Nested markets are fine if the facts support both. I could imagine, for example, markets for colas, all soft drinks, and all beverages. If all satisfy the hypothetical monopolist test, conduct that harms competition in any one of them (or more than one) would presumably violate the antitrust laws.

Slater’s perspective favors strong antitrust. But it’s natural to wonder whether liberty protection—the intellectual basis for what she calls a new right realignment in antitrust—would, like Lochner era thinking, now justify non-antitrust policies to circumscribe social & economic regulation. 5/5

Slater also recalls the 19th c in her populist framing of antitrust as supporting “forgotten men and women”—for her consumers, workers, and small businesses and innovators in Little Tech, manufacturing, and family farms—against private monopolies, particularly “online platforms” 4/5

That view animated the Supreme Court’s 1899 Addyston Pipe decision, a leading antitrust precedent still read today written by Justice Rufus Peckham. Peckham famously supported expansive substantive due process protection for contract and property rights. 3/5

Slater emphasizes that individual liberty is threatened by “corporate tyranny” just as it is threatened by government tyranny. Similarly, the Lochner era Supreme Court objected to all artificial interference with the market, public or private, as inconsistent with the “liberty of contract.” 2/5

I gave a list of examples such as unilateral effects of mergers and raising rivals' costs analysis, and said "Those developments often moved the law and enforcement in a direction counter to the distributional interest of big business." From ssrn.com/abstract=449... 4/4

On the role of economics, I wrote in 2023 that "the big business capture theory cannot readily rationalize the not insubstantial influence ... of developments in economics since the 1970s that called into question non-interventionist perspectives" 3/4