Symposium: Consumer Welfare Market Structure and Political Power

Abstract

Since the middle of the last century, two competing visions have dominated the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-liberals view antitrust and consumer protection as existing only in service of competitive markets; the welfare of consumers is measured by price theory and consumer protection, in any form other than notice, is viewed as paternalistic. The progressives take a more holistic view: they see antitrust as concerned with the competition but also with the market structure; similarly, they see consumer protection as considering the realities of consumer behavior and the possibility of predatory behavior in addition to information asymmetry. Finally, the progressives see both consumer welfare and market structure as intimately intertwined with the health of democracy.

The neo-classical approach is associated with Robert Bork and the Law and Economics Movement.' The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts.

Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 drew attention to how pathologies of consumer credit markets could create systemic risk, even (indeed especially) in markets that appeared to be competitive. Internet platforms and so-called "fintech" have reshaped our ideas about market power and its interrelationship with political power. This symposium, held at Brooklyn Law School in September of 2020, provided an opportunity to look deeply at the effect technology has had on consumer transactions, at the politics of antitrust, and at the institutions that regulate and respond to these changes in the marketplace.