Is economic regulation a necessary restraint on power, or a threat to individual opportunity? Panelists assess the roots of this debate in the common law, examining how courts historically balanced freedom of contract and trade with concerns about monopolies, labor, and the public interest. What do these historical insights suggest about today’s regulatory state, and how should we think about economic liberty as a constitutional value?

Joseph V. Coniglio speaks on the longstanding debate over whether liberty in commerce enhances or undermines broader human flourishing.

Opening Remarks

Well first let me say it’s a pleasure to be here. I want to express my gratitude to Judge Starr for moderating and my co-panelists for participating in this really great discussion we’re about to have. I also want to thank the Federalist Society for hosting, albeit not for having me speak first on such a huge topic with so many layers. In my introductory remarks, I want to touch on three: first, the theoretical relations between the common law, economic liberty, and human flourishing, second, their application to the particular case of antitrust, and third, how they help frame the political debate we are seeing on the right when it comes these issues of law, markets and morality.

Let’s start with the intersection between economic liberty, which I’ll define as the idea that the state will generally not get involved in determining market outcomes—as opposed to some form of regulation—and the then common law, which as you all know is a body of private law focused on providing rules for transactions between individuals—in contrast to public law, which concerns the relation between the individual and the state. Now, there’s lots of ways in which I think economic liberty and the common law go together. It’s not just that markets need legal rules, but when you look at the history of U.S. antitrust law, for example, in two periods courts broadly replaced a public law understanding of antitrust, such as to protect democracy, with a private one, such as consumer welfare. At the same time, they also abandoned interventionist economic paradigms and embraced classical and later neoclassical doctrines of laissez faire.

Second, there is the relation between the common law and human flourishing, the latter of which I would define in terms of a moral framework rooted in natural teleology, but which you could also say more broadly includes modern understandings of natural right such as those in Hobbes, Locke and Rousseau. And here I think there are three ways to see this. First, there are commentators who perform a sort of economic reductionism and basically wave away any understanding of flourishing from the common law. Second, you have those who will say the common law is just a way to inductively get at natural law or flourishing—there’s no conflict between the two. And I think there is also another view which does sees a real tension: flourishing is about nature and natural law, whereas the common law is about custom and tradition, and those are two fundamentally different postures for thinking about the ultimate basis of law.

Now, with respect to the relation between economic liberty and human flourishing, I think there’s a similar trifurcation of perspectives. If you look at neoliberal types, there’s the model that flourishing or natural right is irrelevant to law and economics, which should be “positivist.” Alternatively, there is the classical liberal view where economic liberty and at least some sense of natural moral order or flourishing work hand in hand—think of Adam Smith, for example, who in his lectures on jurisprudence talks about how the ethics of commercial man is basically the morality we want for society—probity, punctuality, trust, et cetera. Finally, there’s a third view where flourishing and economic liberty are in tension, and certainly historically, when you think about things like the just price doctrine, that’s no doubt been true. But aside from economic tensions, there’s also a sociological tension you see described in thinkers like Schumpeter and Weber where economically capitalism and economic liberty are good, but there is a sociological effect that isn’t, whereby capitalism alienates the values that make it work—Schumpeter’s entrepreneurial spirit, Weber’s Protestant work ethic.

I think Schumpeter had this right, and I want to use his insight to sort of tie this all together. From an economic perspective, creative destruction is good, and we want to encourage the economic liberty that underpins it. But creative destruction does have a chilling effect on the entrepreneurial spirit, which isn’t just about self-preservation or natural law, but for Schumpeter a combination of heroic and creative values that I’ve described as Homeric and pre-Socratic at their core. And this is why I think we should see, as Blackstone described, the common law as that “ancient collection of unwritten maxims and customs.” They are the rules that protect these deep-rooted values that, among other things, are essential to making economic liberty work, even if and in fact precisely because they go beyond what we think of in terms of flourishing and natural law.

Bringing this sort of project to bear on antitrust law and political economy is something I’ve tried to do in a recently published article in the George Mason Journal of Law Economics and Policy as part of the big debate being we’re having on the right. You have some that want to double down on neoliberalism and its theory of liberty without order, so to speak, and then others who want to introduce a conception of order back into our political economy. And within this latter group, there is a debate about whether economic liberty is still a good thing, as well as a disagreement about what order looks like—classical natural law, perhaps a modern idea of natural rights, or a even still a more Schumpeterian view. And if you look at the political spectrum more broadly, in addition to the center-left neoliberal liberty without order model, the populist right who want order even if it comes at the expense of liberty, and a center-right ordered liberty approach, you’ve also got the progressives, who want neither order nor liberty in political economy.

Needless to say, I’m in favor an ordered liberty paradigm for antitrust law and political economy that combines economic liberty with this Schumpeterian sense of order as well as an antitrust regime that reflects a private common law view like Justice Holmes’s, which is strongly realist, and I think is consistent with the evolution of antitrust rules over time as a historical matter. Formalist modes of legal thinking, including originalism, really don’t fit antitrust very well. So that’s a lot for starters, and I think I’ll stop there.