Book Review

Few areas of law are as interwoven with economic and political developments as antitrust law. In the United States, unlike most of the rest of the world, this interweaving takes place primarily in the courts rather than in other institutions of governance. (In most of the rest of the world, legislative and administrative processes play a far greater role in this area than do the courts. For the European experience, see David J. Gerber, Law and Competition in Twentieth-Century Europe: Protecting Prometheus [Oxford: Oxford University Press, 1998].) Yet courts seldom reveal very much about the societal conflicts in which they are imbedded, and thus reliance on the courts tends to make the dynamics of antitrust law particularly opaque. Scholars have typically been content to identify developments in the case law (difficult enough, it would seem), seldom penetrating the textual fabric of the decisions to reveal the underlying societal conflicts that have driven that development. In this book, Professor Peritz steps into this breach and provides a wealth of insights into the conflictual "embeddedness" of competition law in the United States.	1
The book is bold and provocative. Its scope is certainly bold. Peritz takes on the formidable task of constructing a narrative of the evolution of competition law in the U.S. from its inception in the trust-busting movements of the 1880s and 1890s through the early 1990s. Given the vast number of significant decisions and the author's ambition to make sense out of their interrelationships and the trajectory of their development, this is a truly daunting enterprise that few others have dared to attempt.	2
The pointedness of the author's perspectives on the U.S. antitrust tradition makes his analysis provocative. They are intensely "post-modern" in their emphasis on the "constructedness" of language and the centrality of rhetoric. In this work, these perspectives reflect and inform two intertwined objectives: the book is history, but at some points it is also political argument.	3
It is, above all, history—an attempt to construct and make sense of past events—here, the development of competition law ideas. The text is organized as a narrative in which the author seeks to reveal the dynamics of thinking about competition law and the patterns of influence that have shaped its formation. His focus is on the rhetorics of competition law—what was said about it, how, by whom, and for what purposes.	4
The narrative has a clear enough trajectory. In it, the Sherman Act, the country's first antitrust statute, reflected a broad, national desire to prevent social harms resulting from the agglomeration and use of economic power. Yet the text of the Sherman Act concealed conflicts over the importance of that objective and the means by which it should be pursued. Peritz figures these conflicts as contests between competing rhetorical alliances. As he sees it, those opposed to the original impetus behind the antitrust laws have usually had sufficient power to thwart its force. This process began almost immediately after passage of the act and has continued through much of the rest of the intervening period, with brief breaks of renewed commitment to the initial goals of antitrust during the latter part of the New Deal and again in the 1960s.	5
In the early chapters, the narrative centers on a close, often insightful, and sometimes brilliantly original reading of cases against the background of political and economic influences. The author identifies the rhetorical turns of the early cases and their frequent hermeneutic retreats from the language and political thrust of the Sherman Act. He looks carefully at the ways in which political forces—primarily in Congress—responded to these retreats (or were prevented from responding to them).	6
The book's middle chapters play particularly close attention to the movement of political and economic ideas within the country's political and legal circles and their impact on competition law thinking. The author traces, for example, the impact of various strands of corporatism on antitrust thought in the 1920s and 1930s, revealing the extent to which the New Deal led to an association between ideas of competition and social equality. In the 1950s and early 1960s this association carried a great deal of force. Yet, as Peritz so insightfully demonstrates, by the end of the 1960s this association was being shredded by a new emphasis on more abstract and formal conceptions of competition as a purely economic process.	7
Peritz's political argument often moves to center stage in the final chapters (1968-1992), especially when he is treating the Reagan-Bush years and the rise of "Chicago-school analysis." In these chapters the author includes sizeable segments of material attacking the writings of the Chicago school of law and economics and its more prominent representatives such as Richard Posner and Robert Bork. In this more overtly political material, Peritz draws on the intellectual tools of the critical legal studies movement, and his perspective reflects many of the objectives that this movement has espoused. Peritz seeks to expose the ways in which the social objectives of antitrust law have been undermined, and he devotes much attention to showing the reader how this happened and why he disagrees with the arguments of those responsible for this offensive.	8
Some may find this injection of large chunks of criticism irritating and/or an inappropriate interference with the historical narrative, and the addition of this material sometimes does make the historical account more difficult to follow. On the other hand, it reveals much about the perceptions and values of the author, and since the book is shaped by those values and perceptions, this knowledge can be valuable.	9
Viewing the U.S. antitrust tradition as part of a contested force field, a site of battle over economic power and its uses, also opens up new lines of analysis. For example, it invites the author to tie competition law to other sites where this conflict occurs—such as labor law in the early decades of the century and corporate law in the 1980s and 1990s. While this sometimes again diverts attention from the development of antitrust ideas, it brings new insights into our understanding of the narrative.	10
I suspect that Peritz sometimes draws the image of distinct and competing rhetorical alliances a bit too sharply, and on occasion he sees more consistency in the respective "logics" than I do. For example, he portrays the history of competition law as a struggle between a property logic that is often driven by the need to protect against economic power, and a market logic that values efficiency but does not acknowledge the category of economic power. Market "logic" need not, however, be constructed quite so tightly, and in neither United States nor European experience has the market rhetoric excluded considerations of economic power. Such disagreements are, however, the stuff of debate and do not detract from the immense value of Peritz's book.	11
Often eloquent, insistently contentious, and refreshingly insightful, Peritz gives us a bracing and challenging account of the evolution of antitrust law. He reveals levels and dimensions of competition law experience that have often operated outside the "field of vision" of historians (as well as decision makers); henceforth they will be difficult to ignore. Antitrust law in the United States has regained some of its lost impetus in the years since Peritz's narrative ended. Moreover, the "globalizing" economy has focused attention on the international and comparative aspects of antitrust. Both developments underline the need for creative insights into the phenomenon of antitrust law in its varied temporal, political, and geographical instantiations. Peritz has provided us with a book that will long be seen as a central contribution to meeting that need.	12
David J. Gerber Chicago-Kent College of Law

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