The Limits of Antitrust Scholarship

By Orbach, Barak | Texas Law Review, April 1, 2013 | Go to article overview

The Limits of Antitrust Scholarship

Orbach, Barak, Texas Law Review

The Limits of Antitrust Scholarship THE GLOBAL LIMITS OF COMPETITION LAW. Edited by Ioannis Lianos & D. Daniel Sokol. Stanford University Press, 2012. 288 pages. $50.00.

About thirty years ago, Professor Frank Easterbrook published his seminal article, The Limits of Antitrust, in the Texas Law Review. 1 Easterbrook declared that "[t]he goal of antitrust is to perfect the operation of competitive markets,"2 and concluded that "[a]ntitrust is an imperfect tool for the regulation of competition." 3 It is an imperfect tool, he explained, "because we rarely know the right amount of competition there should be, because neither judges nor juries are particularly good at handling complex economic arguments, and because many plaintiffs are interested in restraining rather than promoting competition."4

Since Easterbrook published his article, the intellectual resources invested in antitrust in the United States have been in decline (see Figure 1). Easterbrook wrote about institutional and conceptual limits of antitrust-the internal limits of antitrust. Others have addressed the extrinsic limits of antitrust-the relationships of antitrust with other areas of law, such as intellectual property and regulation.5 The decrease in depth of antitrust writing introduced a new form of limits in antitrust: diminishing critique and intellectual development in the field. This is the depth limit of antitrust. Of course, one may argue that there is no need for antitrust enforcement or antitrust scholarship, or at least no need for much.6 Such arguments, however, tend to reflect general objections to regulation that have their own social costs.7 They often rely on "fire of truth" theories that no knowledge or analysis can possibly challenge.8 The oversimplicity of such "fire of truth" arguments has been burdening antitrust for too long.

Ioannis Lianos and Daniel Sokol's The Global Limits of Competition Law (GLCL) is the first book in a series intending to develop antitrust scholarship.10 GLCL's "starting point [is] the intrinsic limits of competition law that Judge Frank Easterbrook highlighted."11 The purpose of the book is to explore a broad set of limits to competition laws, "some intrinsic to antitrust, others extrinsic."12 By definition, antitrust scholarship, including scholarship about the limits of antitrust, expands the depth limits of antitrust.

GLCL is a book about competition laws, known in the United States as antitrust.13 The book examines "competition laws" as a concept. It consists of fifteen essays written by prominent antitrust scholars. As a collection of essays, GLCL presents complementary perspectives of today's limits of antitrust.

The understanding of GLCL requires some appreciation of the simplicity and hospitality traditions in antitrust. The simplicity tradition refers to the tendency of individuals to view markets, businesses, and business practices either as competitive or as anticompetitive. That is, the individual simplifies facts and realities in a manner that allows her to consistently reach the same conclusion about competitiveness. In The Limits of Antitrust, Frank Easterbrook described the "inhospitality tradition" as "[t]he tradition [in which] judges view each business practice with suspicion, always wondering how firms are using it to harm consumers. If the defendant cannot convince the judge that its practices are an essential feature of competition, the judge forbids their use."14

GLCL's essays shed light about the complexities of reality effectively rejecting the simplicity and hospitality traditions. As Herbert Hovenkamp sums up in his essay: "extremes [in] antitrust policy should [be] avoid[ed]."15

Easterbrook's The Limits of Antitrust is a seminal article that, unlike ordinary academic works, has survived developments in time and is still relevant. 16 Being a Chicago School disciple, Easterbrook presented a taxonomy of antitrust errors, arguing that if we "let some socially undesirable practices escape, the cost is bearable," 17 while the "costs of deterring beneficial conduct (a byproduct of any search for the undesirable examples) are high. …

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