Abstract

*This is the fourth post in a symposium on William Novak’s New Democracy: The Creation of the Modern American State. For other posts in the series, click here.

In his chapter on antitrust law and the American antimonopoly tradition, the penultimate substantive chapter of the book, Novak covers much familiar ground. Yet, he is not focused on the conventional areas of debate in antitrust history, which have included recovering the congressional intent behind the Sherman Antitrust Act of 1890, recreating the economic logic of early antitrust jurisprudence, or surveying the doctrinal shift from “literalism” to the rule of reason. Instead, Novak’s narrative focuses on the “legal-intellectual framework for economic regulation” posited by institutional economists and legal realists, and the ways in which that framework was operationalized, especially in the administrative law of unfair competition. What is new (and provocative) is that he portrays this framework as unitary product of the “new democracy.”

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