Thursday, August 6, 2020
Reasonable disagreements are pervasive in antitrust, yet the leading antitrust systems function in a broadly effective and consistent manner. How can we explain this paradox? The tentative reply to this question is that the two main antitrust jurisdictions have managed to do so by adopting the features of ‘responsive law’ (RL). Therefore, antitrust institutions could further benefit if they adopt the RL framework to understand and deal with reasonable disagreements.
To support this argument, I contend that reasonable disagreements are endogenous in antitrust systems, as they derive from antitrust’s fuzzy mandate, conceptually elastic vocabulary, and rules and standards mode of analysis. In a nutshell, reasonable disagreements are the by-product of two complementary yet antithetical forces of antitrust: openness and integrity. Nonetheless, conventional wisdom has it that such disagreements are temporary indeterminacies that will eventually be eradicated. This view stems from a conceptualization of antitrust as a form of ‘autonomous law’. However, this model of law does not take reasonable disagreements seriously and as a result offers an inadequate modus operandi for dealing with them. The ‘RL’ model, on the contrary, recognizes the endogeneity of reasonable disagreements and the underlying forces that generate them. Instead of attempting to eliminate them, therefore, the RL model suggests that antitrust institutions should seek to tame and exploit them. For this purpose, this model proposes a legal-institutional modus operandi for calibrating the eliciting forces of reasonable disagreements, that is, openness and integrity. The hallmarks of this approach are constructive teleological interpretation, experimentalist network-based enforcement by postbureaucratic enforcers, and courts operating as catalysts.