Monday, May 28, 2007
Posted by D. Daniel Sokol
FTC Commissioner Bill Kovacic provides a nuanced and informative understanding of the evolution of U.S. antitrust in the area of monopolization in "The Intellectual DNA of Modern U.S. Competition Law for Dominant Firm Conduct: The Chicago/Harvard Double Helix," which appears in the 2007 Columbia Buisiness Law Review. In a departure from previous work, Kovacic stresses that we should recast antitrust history from a Chicago/Post-Chicago dialectic to oen that utilizes a Chicago/Harvard "double helix." Kovacic describes this double helix as follows:
Two closely related presumptions embedded in the Chicago/Harvard double helix stand out. First, the double helix assumes that overinclusive applications of antitrust law to control dominant firm conduct pose greater hazards to economic performance than underinclusive applications. This presumption assumes that the likelihood that entry and adaptability by competitors, customers, and suppliers more often than not will blunt dominant firm efforts to exercise market power...
The second critical presumption of the Chicago/Harvard double helix is grounded in concerns about institutional design and capacity. To understand the Chicago/Harvard concern with the implementation of antitrust policy is to see how perceptions about the quality of institutional design and capacity have affected substantive outcomes in U.S. antitrust law and policy. The permissiveness of the Chicago/Harvard approach to dominant firms, including the emphasis on administrable rules that tend to exculpate, hinges crucially upon doubts about the capabilities of enforcement agencies and courts and antipathy toward what is posited to be an unduly expansive system of private rights of action. Through the lens of the Chicago/Harvard double helix, Post-Chicago scholars often falter because they make unduly hopeful assumptions about the capacity of the key implementing institutions of the antitrust system to apply the insights of Post-Chicago analysis skillfully.253 By this view, non-interventionist presumptions are endorsed not because they inevitably make sound assumptions about the harms of specific forms of business behavior, but instead because they make more accurate assumptions about the limitations of courts and enforcement agencies.254 (pp. 70-72).