Monday, August 6, 2012
Posted by D. Daniel Sokol
Max Huffman, Indiana University Robert H. McKinney School of Law discusses Marrying Neo-Chicago with Behavioral Antitrust.
ABSTRACT: Neo-Chicago Antitrust is the topic of this symposium. Its adherents characterize it as a return to Chicago principles, informed by the developments in economic thinking over the past thirty-or-so years – notably, insights from both the Chicago and Post-Chicago schools. Behavioral Antitrust is a new area of scholarly inquiry that has gathered some attention in very recent years. The earliest article explicitly proposing a behavioral approach to antitrust was written in 2002. Proponents encourage courts and policy-makers to import the study of behavioral law and economics into antitrust analysis, using empirical study better to understand the conduct of individuals in market settings. Like foregoing antitrust economics movements, Behavioral Antitrust is on its face result-neutral, but as it has been discussed to date, it has a political slant. Until very recently, all of the writing advocating Behavioral Antitrust favored increased antitrust enforcement. Neo-Chicago and Behavioral Antitrust came along at about the same time, and a marriage of the two might temper any respective tendencies of either toward predetermined political ends. The combination might produce a more result-neutral enterprise of “economically informed antitrust.” Neo-Chicago promises an improvement over Chicago’s simplification of facts in pursuit of tractability, which Chicago’s advocates applaud but critics argue has gone so far as to produce false understandings of marketplace conduct and effects. That suggests adherents might be receptive to efforts of Behavioral Antitrust scholars in critiquing antitrust rules in the light of empirical studies of individual economic actors. Behavioral Antitrust, in turn, has the goal of informing the assumptions underlying established economic theory through empirical study of the behavior of individual economic actors. That goal might be advanced by looking to Neo-Chicago’s combination of theories from the Chicago and Post-Chicago Schools for a comprehensive theoretical framework for analysis. I suggest here a possible synthesis of Neo-Chicago with Behavioral Antitrust into an enterprise of “economically informed antitrust.”