The Future of Behavioral Economics in Antitrust Jurisprudence

Posted by D. Daniel Sokol

Douglas H. Ginsburg (U.S. Court of Appeals for the DC Circuit) & Derek W. Moore (Cadwalader) offer insights into The Future of Behavioral Economics in Antitrust Jurisprudence.

ABSTRACT: Neoclassical economics or “price theory” has had a profound effect upon antitrust analysis, first as practiced in academia and then as reflected in the jurisprudence of the Supreme Court of the United States. More recently, behavioral economics has had a large and growing influence upon legal scholarship generally. Still, behavioral economics has not yet affected judicial decisions in the United States in any substantive area of law. The question we address is whether that is likely to change in the foreseeable future, i.e., whether the courts’ present embrace of price theory in antitrust cases portends the courts’ imminent acceptance of behavioral economics in either antitrust or consumer protection cases.