Areeda & H. Hovenkamp Antitrust Law
Is there anything wrong with subordinate courts using the treaty as an authority instead of being guided from above? Perhaps the document merely predicts the future opinions of the Supreme Court and the actions of the authorities, and is therefore only an oracle of antitrust law and antitrust policy. From this point of view, the problem of the legal vacuum is not so serious: in the meantime, between the emergence of a new antitrust problem and the authorities` speech, the parties can use the document to predict the final actions of the antitrust authorities to organize their business affairs and disputes. Therefore, the role of the treaty in reducing gaps is relatively unproblematic. From this point of view, there is nothing democratically or institutionally illegitimate about the use of the document in the lower courts, as ratification by the Supreme Court will almost certainly follow. Perhaps the simplest is that the members of the Tribunal have read the document and appreciate it very much. This can be inferred from the frequency of his citations in Supreme Court pleadings,84 the Court`s pervasive and authoritative quotations about them,85 and Justice Breyer`s remark about the importance of the treaty to the practice of antitrust law.86 There seems to be no doubt that the Court has a worn-out copy in its library. The Supreme Court has been slow to adapt competition law in response to advances in economic theory and empirical research, leaving outdated precedents longer than is optimal for antitrust regulation.103 The most striking examples are the survival of the rule itself against price-fixing itself, long after economists have articulated important pro-competitive arguments for its use.104 Delay in the Supreme Court also means that the antitrust consequences of new business practices, especially those arising from technological or regulatory changes, may remain unclear for a significant period of time.105 . This westlaw search was limited to the federal district and appeal courts for [„antitrust paradox“ /10 Bork]. In comparison, a westlaw search for [Areeda/4 Hovenkamp/10 „Antitrust“] limited to federal district and appellate courts revealed 758 cases as of March 23, 2015. .
A Westlaw search for [Areeda/4 Turner/10 „Antitrust“] limited to federal district and appellate courts revealed 602 cases as of March 23, 2015. The Treaty is extremely clear. The complexity of antitrust law ranks second only to the complexity of the underlying economy, and the Areeda-Hovenkamp Treaty deals masterfully with both. She is honest about confusion in the lower courts and proposes her own solutions for simplicity. It breaks the techno-economic arguments for a secular or legal audience without oversimplifying until it is not useful. He harmoniously merges his roles as an antitrust book, economics textbook, and political guide. It demystifies the alchemy of econometrics and statistical reasoning for lawyers and judges who are naturally preoccupied with the confusion of economists in the courtroom. Nature abhors emptiness; Where there is no law transmitted from above, intelligent science will fill the void in the field of antitrust law.58 Identifying the main contributions of the Areeda-Hovenkamp Treaty on antitrust law in the lower courts is a daunting task due to a problem of embarrassment of wealth.
A full treatment of the paper`s influence on court decision-making would be much longer than any reasonable-length essay, so I only have to pick a few important examples. I will discuss here the role that the treaty played in determining the Loyalty Rebate Act and the international scope of the Sherman Act. In both cases, the Court has not yet ruled directly on a number of important issues, so the Areeda-Hovenkamp Treaty remains a central authority. Theoretically, the legislative vacuum could be filled by legislative and regulatory activities, as in the case of environmental law or financial regulation, but Congress has remained essentially silent on antitrust law for many decades. And partly because of an institutional design accident and partly because of the dependence on the path, neither antitrust authority is authoritative on many authoritative rules or regulations. The DOJ does not have a formal standards-setting role, although it can influence policy by selecting cases and taking process positions. Here, however, their influence is limited by the numerous private prosecutions under the Sherman Act, which make up the vast majority of cartel cases decided and over which the DOJ has no control.47 . See Haw, Amicus Briefs, loc. cit. Footnote 40, at pp. 1287-89 (in which he argues that the FTC „assumes responsibility for the enactment and enforcement of antitrust rules“ of the Department`s antitrust division).
The timing was perfect. The Original Antitrust Law: An analysis of antitrust principles and their application was published in 1978, at an opportunistic time in the development of antitrust law. In the previous decade, Richard Posner, 25, and Robert Bork, 26, had strongly advocated a purely economic standard to regulate antitrust law. The Supreme Court awarded these professors their first victory in the subsequent antitrust revolution in 1977 when it ruled Continental T.V., Inc. v. GTE Sylvania Inc.27 according to the Chicago School paradigm. But despite this early interest in combining economic principles with antitrust law, most of the Chicago School`s ideas were too far removed from existing antitrust law — and perhaps too extreme — for a simple judicial takeover. Enter the Areeda-Turner treatise, which grafted economic thought onto the existing doctrine of cartels in a way that was both more moderate and feasible than the scientific proposals of professors like Bork and Posner. Legal references to the treaty are complimentary; In addition to the praise cited above by Justice Breyer, it is not uncommon for courts to comment on its high quality or accessibility when citing the treaty.17 The depth of the treaty`s influence is complemented by its breadth and is cited for a wide range of ideas. Although it is often cited for a succinct reformulation of the law,18 it is also treated as authoritative for antitrust policy,19 relevant economic concepts,20 and on the state of disagreement between the lower courts on certain issues.21 Even its prescriptive positions – which advocate a change in the law or a solution to a division of the circle – have often resonated in the courts.22 that an initial review of the treaty has made a exact prediction when he praised it as follows: . .