Barak Orbach (University of Arizona) has posted Moderation is the Cure to the Crisis in Antitrust Expertise (ProMarket (Dec. 10, 2024)) on SSRN. Here is the abstract:
After decades of relative obscurity, antitrust reentered the public square roughly a decade ago, as trust in expertise was waning. This essay argues that the resulting “crisis of expertise” in competition policy is driven by motivated reasoning, special interest influence, and populist distrust—forces that reward imprecise and sometimes misleading narratives. On one side, Neo-Brandeisian advocates portray antitrust as a remedy for broad social and economic ills; on the other, enforcement skeptics characterize modern antitrust enforcement as anti-business ideology. The essay shows how these camps blur the boundary between expertise and advocacy and how, under current conditions, competition in the “marketplace of ideas” can amplify error rather than correct it. It further contends that enforcers sometimes deepen the problem by privileging intuitive but doctrinally strained arguments that resonate with populist sensibilities over rigorous economic reasoning and careful evidentiary claims. The prescription is technocratic moderation: disciplined attention to doctrine, economics, and tradeoffs; methodological and evidentiary rigor; and agency leadership that reinforces courts’ limited antitrust mandate. The payoff is a more credible and administrable antitrust law.