Effectuating Antitrust's Democratic Function

The antitrust laws have a democratic function, not merely an economic one. As a fundamental legal system of political, economic, and social ordering, the antitrust laws sustain and promote the conditions necessary for democratic self-government. <br> <br> This Article develops this argument through four interrelated analyses. First, this Article demonstrates that lawmakers sought to safeguard democratic institutions and promote the conditions necessary for democratic self-government when they enacted the antitrust laws, particularly the landmark Sherman Act. Second, this Article argues that Congress designed antitrust’s vast, durable, and participatory enforcement structure to function as a democratic architecture, institutionalizing oversight and remediating the harms arising from concentrated economic power. Third, this Article details how the antitrust law’s democratic architecture also incorporates a more positive dimension. It examines how federalism, the Noerr-Pennington doctrine, the labor exemption, and <i>Parker </i>Immunity can both restrain private domination and create and sustain the conditions for democratic ordering so that our fundamental freedoms necessary for democracy can be fully realized. Specifically, this Article focuses on <i>Parker </i>Immunity—the doctrine authorizing states to exempt conduct from antitrust laws—as an exemplary and underutilized mechanism for public ordering. This Article argues that <i>Parker</i> Immunity offers a paradigmatic example of how the antitrust laws can function both as a structural safeguard of democracy and a facilitator of it. Lastly, this Article details how antitrust’s democratic function should structure enforcement policy and provides a basic framework for evaluating whether specific conduct should be lawful under the antitrust laws.&nbsp;