Panel 3: Markets: Consumers, Competition, and Innovation

Naomi Lamoreaux
In recent decisions the Supreme Court has claimed Constitutional authority for curbing the powers of administrative agencies, based in part on dubious assertions about historical practice. We bring new information to bear on this history by examining changes over time in how the Patent Office handled the adjudication of interferences – proceedings to establish priority of invention between two or more inventors. We find that, throughout the period of our study, the courts and Congress granted the Patent Office considerable autonomy, and that the Patent Office continuously adjusted its internal procedures to address a growing caseload and the changing tactics of an increasingly specialized patent bar.

Jared Lucky
Using Massachusetts as a case study, this paper argues that scholars have overlooked efforts at consumer protection in early America, both before and after Independence. Working with statutes and assembly records, the paper identifies three areas of regulation where colonial and state governments intervened in the market to protect consumers: essential foodstuffs; goods in long distance trade; and credit relationships. The paper explains these regulations and recovers their consumer-protective rationale. Like much modern consumer protection, these laws sought to advance both marketplace fairness and economic development. They also depended largely on private litigants for enforcement, both by empowering informers to sue and by creating damages actions for novel statutory harms. While building on English precedents in private enforcement (and sharing their pitfalls), these American statutes also innovated considerably over the course of the eighteenth century. These regulatory systems hybridized public and private law to articulate increasingly sophisticated, global visions of consumers and the market. They anticipated later efforts by legislatures to regulate trademarks, monopolies, and financial instruments. These eighteenth century laws represent a “lost century,” of American consumer protection, long neglected because of laissez faire narratives about the Founding and the failure of much early American historiography to grapple with a broader imperial and Atlantic context.

Laura Phillips Sawyer
In recent years, antitrust law has reemerged as an important tool to address harms that may arise when a firm or a group of firms exercises its market power against the public interest. As controlling antitrust doctrine requires, the critical first step in any antitrust inquiry is determining if the firm possesses some requisite level of market power—without it the claim fails. This essay analyzes how and why competing conceptions of power emerged and re-emerged in antitrust law and economics since World War II, and how those reconceptualizations of power dramatically altered antitrust doctrine, often without statutory interventions. Those contests and the settlements that resulted, I argue, helped redefine democratic capitalism and thus frame today’s new debates over capitalism and democracy.

Chair: Amalia Kessler, Stanford Law School