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

The approach to antitrust enforcement proposed herein (1) regards economizing as the main case, (2) takes strategic behavior in all of its forms seriously, and, provided that due allowance has been made for the operational infirmities of the enforcement process, (3) expressly introduces strategic exceptions to the main case provided that (a) the requisite structural preconditions have been satisfied and (b) the supporting strategic logic withstands scrutiny. The inhospitality excesses of the 1960s are avoided by treating economizing as the main case. Die-hard Chicagoan excesses are similarly avoided by insisting that strategic hazards of subtle and even poorly understood kinds be admitted, added complexities notwithstanding, rather than being arbitrarily dismissed through the use of artificial dichotomies or otherwise.

The limitations of the flexible legal process method are nonetheless real and need to be respected. Provision for these are made by insisting that hypothetical gains be functionally implemented. Lags between the development of new theory and efforts to adopt these refinements into the enforcement process therefore occur routinely. But while antitrust enforcement works out yesterday's theory, this is done with a keen eye to recent and prospective developments.

Those with a strong predilection for certitude or those who believe that the state of yesterday's theory is fully adequate will find this evolutionary recipe unacceptable. Let them reflect, however, on what would have happened had antitrust enforcement been frozen in the 1960s mold. And let them further reflect on the robust state of industrial organization.

Thus, whereas industrial organization was thought to have languished as recently as sixteen years ago, 131 today's verdict is that industrial organization is alive and well and is the queen of applied microeconomics. Antitrust enforcement has been and will continue to be the beneficiary.


NOTES
1.
Easterbrook, "The Limits of Antitrust", 63 Tex. L. Rev.1 ( 1984) [hereinafter Easterbrook, The Limits of Antitrust].
2.
Coase, "Industrial Organization: A Proposal for Research", in Policy Issues and Research Opportunities in Industrial Organization 59, 67 ( V. R. Fuchs ed. 1972).
3.
See generally O. Williamson, The Economic Institutions of Capitalism 15-42, 365-84 ( 1985) [hereinafter O. Williamson, Economic Institutions].
4.
John Shenefield represented that "creative lawyering" could be employed to bring antitrust suits against conglomerate mergers that did not obviously fall within the scope of the merger statutes. Given the vague language of the statutes and the wide latitude of the case law, imaginative lawyers would "find a way" to bring such suits. Hearings Before the Subcomm. on Antitrust and Monopolies of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. 65 ( 1978) (testimony of John H. Shenefield).

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