The Resurgence of the Idea of the Public Good
One of the undercurrents driving the movement that led to Obama’s landslide victory is that people have finally started to reject en masse a public policy that by and large conceived of them only in the most limited, reductionist, and anemic way possible: as private, rational actors, pursuing primarily their own (usually material) advantage. Yesterday, people asserted their roles as citoyens, as political beings concerned not only with themselves but also with the public good. One of the hallmarks of Obama’s campaign was to ask people to do something, to get involved. Not just to contribute financially, but to reach out, organize house parties, call battleground states, take time off for poll watch, all of which meant doing things together with others, i.e., organizing. The message of change thus implies a belief in the possibility of politically meaningful choice, a notion that has been conspicuously absent for a long time, and which is categorically different from consumer choice. How will this re-assertion of the person over the individual play out in the legal world and the antitrust world in particular? I expect a gradual re-evaluation of how the legal system and economic scholarship relate to each other. The normative principle of law is justice. That of economics is efficiency. Taking rights seriously requires that judges and lawyers adopt an internal point of view and put justice first. Of course, this is not to deny that the legal system should import efficiency considerations here and there. For market regulation and marketplace design rules such as antitrust, efficiency is indeed the right default choice. Fortunately, over a wide range of issues, efficiency and justice are not in conflict with one another. It is, however, meant as a reminder that the legal system is fundamentally independent from economics. Normatively, the legal system belongs to a different domain, and in a democracy the legal system does not take orders from the economic system. The latter may very well constrain or enable actions of the former, but factual obstacles are very much unlike normative constraints.
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