Lochnerian Antitrust
Lochner’s centennial anniversary is an appropriate moment to reflect on the relationship between antitrust and libertarianism. Is there room for antitrust in a Lochnerian world that strictly delimits the government’s power to intervene in private market transactions? Perhaps the answer is unimportant, since Lochner perished in 1937 and spawned its own derivative verb (“Lochnerize”), roughly equal in dignity to “lobotomize.” Even such great “anti-precedents” as Dred Scott, Plessy, and Korematsu have not achieved the ignominious distinction of spawning their own verbs. But although the constitutional doctrine of Lochner may be dead, its spirit lives on in the anti-regulatory ideology of neoconservatism, which seeks to achieve Lochnerian goals through other legal doctrines such as the Takings and Contracts clauses as well as through more direct political action. So, for modern libertarians, the compatibility question is well worth asking.
