Revitalizing Antitrust in Its Second Century: Essays on Legal, Economic, and Political Policy

By Harry First; Eleanor M. Fox et al. | Go to book overview
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efficiency objectives of the law can best be met by stable and predictive rules of law; by a rule of law that prevents exclusionary conduct that threatens productive efficiency; and by a rule of law that allows a limited efficiencies defense, which would be available only where the restrictive conduct enhances productive efficiency or technological progress. 7

The chapters by Scherer and Brodley are followed by two essays commenting on them: one co-authored by two economists, the other authored by a litigator. All three commentators accept and build upon many of the empirical observations, and to some extent the definitional constructs, of Professors Scherer and Brodley. All three share the goal of a dynamic, competitive, efficient economy. But the commentators express concern with the complexity of the worlds constructed by both Scherer and Brodley and by the gap between the world each would construct and the roots and spirit of antitrust. Professors Walter Adams and James W. Brock would simplify judicial tasks by greater reliance on a principle of dispersion of power, with its built-in checks and balances. They believe that promotion of the value of pluralism is the surest way to guarantee a "free system" and to assure competitiveness and efficiency. Jerome A. Hochberg, a litigator formerly with the Antitrust Division, is more skeptical about reliance on diversity. He agrees with Scherer and Brodley that the country's emerging self-consciousness about achieving efficient outcomes is a positive development; but he believes that only a modest shift toward more business freedom is warranted in the name of efficiency; that we should confront the fact that laissez faire is inconsistent with the sociopolitical values that produced the law; and, moreover, that efficiency in litigation requires clearer, more broadly drawn rules than Scherer's economics would suggest or Brodley's legal proposal would allow.


NOTES
1.
United States v. Arnold, Schwinn & Co., 388 U.S. 365 ( 1967), overruled by Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 ( 1977); Brown Shoe Co. v. United States, 370 U.S. 294 ( 1962).
2.
E.g., Broadcast Music, Inc. v. Columbia Broadcasting Sys., Inc., 441 U.S. 1 ( 1979); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 ( 1977).
3.
See, e.g., R. Posner, Antitrust Law: An Economic Perspective ( 1976).
4.
R. Bork, The Antitrust Paradox: A Policy at War with Itself 90-106, 405 ( 1978).
5.
See Valley Liquors, Inc. v. Penfield Importers, Ltd., 822 F.2d 656 (7th Cir.), cert. denied, 484 U.S. 977 ( 1987); Rothery Storage & Van Co. v. Atlas Van Lines, 792 F.2d 210 (D.C. Cir. 1986), cert. denied, 479 U.S. 1033 ( 1987).
6.
See Treaty Establishing the European Economic Community (Treaty of Rome), Mar. 25, 1957, art. 85(3).
7.
For a Chicago School view, see Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1 ( 1984), arguing that markets work well and protect the social interest in efficiency and progressiveness; that judges have much less knowledge of particular markets than the

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