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

is a reaction to past practice, which reflexively condemned any restraint fitting a predetermined definition as per se illegal. The problem is also attributable to the fear of according discretion to the decision maker and to the undeserved certainty accorded to a model promising the right answer without regard to the facts of individual cases, the policies of the law, or the requirements of legal reasoning. Today, instead of economic analysis assisting antitrust analysis by illuminating some aspects of reality, a narrow brand of economic analysis is used to the exclusion of broader economic and other insights, the facts of individual cases, and the institutional responsibilities and logical method of the legal process.

In implementing the goals of antitrust through a method of legal reasoning that weighs these goals in light of the realities of the case, courts should change their approach to the per se rules and the rule of reason. Per se rules should be considered evidentiary presumptions, of varying levels of rebuttability, for determining whether there has been an unreasonable displacement of the competitive process. The rule of reason should be used only where no presumption of illegality would apply.

Antitrust enforcement, like any other form of law enforcement, cannot avoid discretion. Courts must determine what rules and facts are relevant, what they mean, and how these rules and facts ought to interact to produce an informed and reasoned judgment on the legality of the conduct under consideration. The concepts it uses are tools, not rules, for bridging the gap between facts from the real world and values underlying the regime of law involved in the dispute. Antitrust policy cannot avoid confronting the intellectual reality that every legal decision is unavoidably a moral one. Like any other form of legal analysis, antitrust policy's primary tool is legal reasoning -- a method of reasoning that is inductive and deductive, one that is constantly required to reexamine the values underlying the law within the constraints upon the judicial process. To some this may be "poetry"; to an experienced legal system it is the essence of legal reasoning and the rule of law.


NOTES
1.
15 U.S.C. § 1 ( 1982) (prohibiting "every contract, combination . . . or conspiracy, in restraint of trade").
2.
See, e.g., F. Cohen, Ethical Systems and Legal Ideals: An Essay on the Foundations of Legal Criticism3-7 ( 1959). In describing the analytical positivism of the late nineteenth century, Roscoe Pound described a state of affairs analogous to current undue reliance on neoclassical economic theory to decide antitrust cases. In a developed legal system when a judge decides a cause, he seeks, first, to attain justice in that particular cause, and, second, to attain it in accordance with law -- that is, on grounds and by a process prescribed in or provided by law. One must admit that the strict theory of the last century denied the first proposition, conceiving the judicial function to begin and end in applying

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