Competition, Effects and Predictability: Rule of Law and the Economic Approach to Competition(Hart Studies in Competition Law)

In the US and EU, legal analysis in competition cases is conducted on a case-by-case approach. This approach assesses each particular practice for both its legality and its welfare effects. While this analytic method has the merits of ‘getting the result right’ by, inter alia, reducing error costs in antitrust adjudication, it comes at a cost of certainty, predictability and clarity in the legal principles which govern antitrust law. This is a rule of law concern.

This is the first book to explore this tension between Europe’s ‘More Economic Approach’, the US’s Rule of Reason, and the Rule of Law. The tension manifests itself in the assumptions in and choice of analytic method; the institutional agents driving this effects based approach and their competency to use and assess the results of the methodology they demand; and, the nature and stability of the legal principles used in modern effects-based competition analysis. The book forcefully argues that this approach to competition law represents a threat to the rule of law.

Competition, Effects and Predictability will be of interest to European and American competition law scholars and practitioners, legal historians, policy makers and members of the judiciary.

Introduction
I. The Effects-Based or ‘More Economic Approach’ to Antitrust2
II. The Organisation and Scope of this Book
III. What this Book is Not
1. The Rule of Law and Why it Matters
I. The Rhetorical Use and Abuse of ‘The Rule of Law’
II. The Rule of Law as a Normative Concept
III. The Rule of Law as a Positive Legal Principle
IV. Why the Rule of Law Matters
V. Conclusion
2. The Effects-Based Approach in the US: The Rule of Reason
I. The Early Background to Sherman Act Interpretation
II. Per Se Rules and the Limits to the Rule of Reason
III. The Renaissance of the Rule of Reason
IV. The Rule of Reason in Practice
V. The ‘Quick Look’ Approach
VI. The Type of Analysis Matters
VII. Effects, Rule of Reason and the Sherman Act Section 2
VIII. Conclusion
3. The Effects-Based Approach in the EU: The More Economic Approach
I. The Pre-MEA Understanding of Articles 101 and 102
II. The Shift to the More Economic Approach
III. The More Economic Approach
IV. Conclusion 3
4. Economics and the Effects-Based Approach
I. The Economics of the Effects-Based Approach
II. The Challenge of Behavioural Economics
III. The Behavioural Challenge to Antitrust
IV. Conclusion
5. Institutional Legitimacy and Competence
I. The Reorientation of Antitrust
II. The Rule of Law and Institutional Competency
III. Conclusion
6. Commercial and Legal Certainty
I. Precedents, Stability and the Need for Change
II. Rules, Standards and Legal Certainty
III. Conclusion
Conclusion: Putting the Rule of Law Back into Antitrust