Alito on Antitrust

So this morning, returning home from a night of uncharacteristic debauchery, I proved once again that I am sadly, woefully, entirely definitely in the right line of work, since apparently even schlepping home from a bunch of silliness I can't escape my own legal maunderings.

There I was, driving down Bigelow Boulevard within an order of magnitude of the speed limit, when it hit me: I hadn't read a single comment about Judge Alito's record in antitrust cases.

So I decided to call a friend with a scholar's background in antitrust, with a healthy dose of econ and 20th century intellectual history (focus on econ) buried in his rather extraordinary mind, and ask him. I caught him on his way into work, the business he maintains while working full-time as an associate to the New York office of a blue chip law firm, said the perfunctory hello and jumped right in:

M: So I'm thinking, I don't know anything about Alito's record on antitrust, do you?

B: No. But the Supreme Court avoids antitrust cases like the plague . . .

M: Yeah, but it seems to me that notwithstanding the recent lull in sort of serious formative antitrust cases, in lieu of the disputatious [I actually used that word] stuff that comprises most anti-trust litigation these days, it seems to me there's going to have to be another golden age of sorts as the big boxes take over each other and everything else.

B: That may be true.

Unfortunately, right about then, B had to go, leaving me, still en route home, entirely unsatisfied.

Well, Google being what it is, it gave me these sources, proof positive that other people have had the same thought. Furthermore, at least in my mind, what I'm reading in these places provides another reason to be leery of the sort of justice Judge Alito would be in the cases that ought to matter most to us.

The American Antitrust Institute offers this curt summary (at this link, find analysis of all of the antitrust decisions Judge Alito was involved in deciding):

The American Antitrust Institute requested Michael J. Freed, one of its Advisory Board members, to look into the record of Judge Samuel Alito with respect to antitrust. He found no relevant articles by Judge Alito, but identified a small group of cases in which Alito sat as judge where antitrust issues arose. While one must to some extent read between the lines in order to find the outlines of a position, it appears that Judge Alito is not favorably disposed toward the private enforcement of the antitrust laws. The one case in which he seemed most friendly to an antitrust claim was decided over fourteen years ago. Mr. Freed concluded from this research that "Judge Alito is not likely to be a supporter of antitrust enforcement."

Antitrust isn't generally the controversial, divisive, or easily accessible topic that, say, abortion is. Indeed, it is dense, implacable, and seems a bit aloof from the day to day lives of laypersons. But like genetic privacy, intellectual property generally, and other topics that are only beginning to emerge as critically important to the country in the coming decades, I think antitrust law figures in there as well.

Why? Because if there isn't a renaissance in antitrust regulation and enforcement, and soon, our children may never know what it's like to wander into a little candy store or a vintage boutique, as little by little a few mega-corporations encroach upon the marginal market sectors they haven't already infected.

This may be an outcome that at least some bargain-hunting Americans may view as inoffensive, but independent commerce lies at the heart of the best that capitalism has to offer, and exists in symbiosis with the diversity Americans should celebrate every day of their lives.