Review of Industrial Organization 14: 123–133, 1999.
© 1999 Kluwer Academic Publishers. Printed in the Netherlands.
The Obfuscation of the Common Good
DANIEL J. GIFFORD
The Law School, University of Minnesota, Minneapolis MN 55455, U.S.A.
Abstract. The remarkable, albeit ﬁctional, exchange between a deceased senator and a philosophy
professor raises a number of interesting issues about the Sherman Act. In the pages that follow, I offer
some criticisms of the dialogue.
I will show that the professor’s positions misuse Rawlsian theory to
advocate casting unnecessary burdens on society in general and the poor in particular. The professor
is especially dispirited about the way the Sherman Act has been interpreted over the years. In the
dialogue, the professor seems to want a populist element to be interjected into judicial constructions
of that legislation. By the time the dialogue is over, both men have expressed a belief that government
should become more involved in economic decision-making. Yet both men also apparently recognize
that human institutions may be incapable of administering a vast and complex society in a satisfactory
In responding to the issues raised in this dialogue, it is important to identify the
premises of the participants. The professor is deeply suspicious of capitalism and
apparently unimpressed by the virtues of free markets. The professor apparently be-
lieves in a populist version of capitalism in which government intervention would
ensure continuing opportunities for small enterprises, regardless of their levels of
economic efﬁciency. Once we understand where the professor is coming from and
where he would like society to go, we are better able to evaluate his use of Rawlsian
terms to achieve his goals.
In the dialogue, the professor says that “pure capitalism... could never coex-
ist with justice” because of its “unequal distribution of personal wealth” as well
as “its high levels of structural unemployment” (pp. 108–109). Furthermore, the
professor surprisingly asserts that any economic system can achieve tolerable eco-
nomic results, regardless of whether it has open or closed markets, whether using
Robins, Kaplan, Miller and Ciresi Professor of Law, University of Minnesota. The author
gratefully acknowledges helpful comments from his colleague, Professor Jim Chen.
In the ﬁctional dialogue, the senator is said to be Senator Sherman and the professor is said
to be John Rawls. Because I criticize the remarks of the philosophy professor of the dialogue as
being inconsistent with the Rawlsian theory, I will (in the interests of clarity) refer to the dialogue
participants as the “senator” and the “professor” to distinguish the latter from the real Rawls. On
Rawlsian theory, see John Rawls, A Theory of Justice (1971) (hereafter Theory); John Rawls, Political