US antitrust doctrine is perhaps the greatest conservative philosophical victory. Why are some conservatives so willing to throw it away?

There are elements on the left and right that want to break up Big Tech, even if that means changing the accepted American legal doctrine about antitrust. And as University of Michigan law professor Daniel Crane reminds us in his new essay “Antitrust’s Unconventional Politics” in the University of Michigan Law Review, “Standing against the anti-incumbent challengers from both political wings is a broad, bi-partisan establishment center seeking to defend the consumer welfare framework.”

Of course, the supremacy of the consumer welfare standard — it is the governing standard in US antitrust law — is due to the scholarship of Robert Bork. This from one scholar:

Antitrust was defined by Robert Bork. I cannot overstate his influence. Any antitrust person would tell you the same thing. Perhaps we will differ on the interpretation of him but Robert Bork is the single most important person in antitrust in America. Whatever happened in 1987 was insignificant by comparison. In 1960, he was concerned the socialists would take over the country through antitrust. Antitrust then was about protecting small businesses. He built a full framework about how antitrust should be more about economic efficiency than about helping small businesses. He expanded upon this in articles and the book, The Antitrust Paradox, in 1978. He wrote a sentence: Congress enacted the Sherman act as a “consumer welfare prescription.” The Supreme Court adopted that sentence in 1979. That is the stated goal in antitrust today. It is a big deal. A huge deal. In antitrust, it’s operational. Robert Bork defined it.

Indeed, some have called antitrust jurisprudence not only the greatest conservative legal success, but more broadly maybe the greatest conservative philosophical success in the United States. Here’s Northwestern University law professor John O. McGinnis:

The reformation of competition law in America, which has influenced law around the world, is in reality one of the greatest achievements of the forces for liberty. It replaced various interpretations that courts in the eras of the New Deal and the Great Society used to maximize their own discretion at the expense of economic efficiency in favor of one that has served the cause of consumers and innovation.

And scholars on the left and right accept it. So it is stunning, really, the ease with which some center-right thinkers have begun, at minimum, dabbling with the idea of abandoning the standard — all based on precious little empirical evidence of harm. Is Big Tech so different that change is necessary? Possibly, as I explore in my new The Week column. But as Makan Delrahim, assistant attorney general, Antitrust Division, at the DOJ said in a speech earlier this week, “[The consumer welfare standard] is flexible to new business models generally and digital media markets, in particular.” Caution is warranted.