In liberal societies, everyone claims certain rights. Depending on where you live, you may have the right to free speech, the right of free worship, and the right to love and marry who you choose—all subject to limitations in acknowledgment of the rights of others (which, in extreme cases, are litigated in court or debated in legislatures). Different political parties and activist groups argue for the importance of certain rights over others, or that their constituents or members deserve more rights than other people do or more protection for their preferred rights when they conflict with others. Some argue that in the United States, more than any other democracy, rights are emphasized too much; as legal scholar Jamal Greene puts it, “rights are the commandments of our civil religion,” and they are often presumed to stop a discussion rather than providing grounds for exploring it more deeply.

A confusion over the nature and importance of rights also lies at the heart of the problems with antitrust, in which the traditionally protected rights of some parties are neglected at the same time that new, arbitrarily granted rights are implied to belong to other parties. In this chapter, we’ll outline a basic conception of rights in general and property rights in particular, focusing on their importance as well as their limitations. Then we’ll apply this conception to antitrust, beginning with exploring the specific rights firms and consumers have in the marketplace and what considerations legitimately limit the exercise of these rights. This will support the overall argument of this book that antitrust law penalizes firms, not for violating any rights held by consumers or competitors, but simply for failing to contribute to total welfare—exactly the requirement against which their property rights are meant to protect.

The essence of rights

The understanding of rights that I use in this book is very simple and moderate, and I expect that it is one that most readers will find reasonable and familiar. I am not using any precise or specific definition, but merely the concept of rights that Dworkin referred to when he described them as “trumps,” writing (as we saw in Chapter 3) that “individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do.”