GEORGIA LAW REVIEW - StephanKinsella.com

1342 GEORGIA LAW REWEW [Vol. 13:1245
ership, while control is in public hands.)z4 But if charging high
prices for one's goods or services violates no rights, neither does
charging low prices, or indeed gift-giving. To be sure, competitors
may have an interest in a corporation's charging only "fair" prices,
just as customers have an interest in "fairness" in the opposite
direction; but neither competitors nor customers have any rights in
this matter, for neither owns the object offered and hence has any
ground for setting the conditions of offer.
These last-mentioned conclusions bring us straightaway, of
course, to the antitrust law that has variously plagued and benefitted
the corporation for nearly a century now. I will not go into the
minutiae-infinite in principle-of this area of our law because,
quite simply, the theory behind antitrust enjoys absolutely no foundation
in the theory of rights.225 Quite apart, that is, from whether
modern antitrust law has had the effect of protecting competitors
rather than consumers, as has recently been argued,226 the basic
normative question is whether this body of law is justified at all. It
will be justified only if there are rights that the proscribed acts
violate. We have just seen that pricing decisions violate no rights.
Neither then does "predatory pricing," or the market concentration
that may (but only may) result, or the possible decline of competitors.
For once again, if an act is not actionable per se, if it takes
nothing to which others have a right, then it is not actionable even
when done from a bad motive. Consumers have no more right to
"fair prices" than competitors to "equal opportunity," as brought
out in Part 111. Likewise, price fixing violates no rights; nor do
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224 Wage and price controls do not, of course, amount to complete external control of market
behavior-or the uses that can be made of private property-as might be expected under a
thoroughgoing fascistic regime. They do not, for example, reach out to the supply side of
behavior. Accordingly, suppliers invariably respond to such controls by reducing their efforts
(or directing them elsewhere), which gives rise, of course, to shortages. To have any hope of
avoiding these shortages, then, wage and price controls have to be accompanied (at least) by
forced supply-which moves the regime closer to thoroughgoing fascism, to the slavery that
forced supply just is. (Alternatively, confiscation would enable the regime to move past
fascism to socialism, thus eliminating the nominally private property altogether, though not
the forced supply or slavery.) See R. SCHUETTINGER & E. BUTLER, FORTY CENTURIES OF WAGE-
PRICE CONTROLS: HOW NOT TO FIGHT INFLATION (1979).
2W For an excellent treatment see D. ARMENTANO, THE MYTHS OF ANTITRUST (1972). See also
R. BORK, THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF (1978), which unfortunately
is vitiated by Bork's (implicitly positivist) assumption-no doubt historically correct, for all
its theoretical difficulties-that the "purpose" of our antitrust law is to increase consumer
welfare. That rationale, of course, could "justify" the violation of an endless number of rights.
See II.B.l supra.
226 See R. BORK, supra note 225.