Monday, April 12, 2010
Posted by D. Daniel Sokol
Adi Ayal (Bar Ilan - Law) explains The Monopolist as Victim: Constitutional Law in Antitrust - Part I.
ABSTRACT: Constitutional law dictates that when one person's use of property infringes upon another's, a balancing test be administered to examine whether state action is justified. The case at point here is that of a monopolist arguing for freedom of trade and right to property infringed upon by state action purporting to protect consumers. The question addressed is whether a monopolist as such is to be deprived such consideration, and what arguments such a monopolist might bring forth.
The setting is Israeli constitutional law, specifically two relatively new Basic Laws expressly guaranteeing the right to free determination of property and the right to freedom of occupation. I show that a monopolist would have firm ground on which to stand when arguing the Restrictive Trade Practices Law may violate constitutional standards and subsequently should be constrained by expressly allowed judicial review.