Research Handbooks in Law and Economics series
Edited by Einer R. Elhauge
Chapter 1: Introduction and Overview to Current Issues in Antitrust Economics
Einer Elhauge Although economic analysis of law is increasingly important in many legal fields, perhaps no field of law is as dominated by economics as antitrust law. This no doubt reflects a confluence of factors. First, serious economic analysis of law really began with antitrust law, so economic analysis into antitrust issues has had time to go deeper and wider than economic analysis of other legal fields. Second, so much of standard microeconomics is directly relevant, given that antitrust involves regulating market competition. Third, the courts and enforcement agencies have grounded antitrust legal doctrines explicitly in concepts of antitrust economics. Fourth, because of the last factor, antitrust law creates a series of issues on which expert testimony on antitrust economics is relevant, meaning that every antitrust case of significance has at least one (often more) testifying expert on antitrust economics on each side. Antitrust law is thus unusual not only in the extent to which it turns on economics, but also in the extent to which that economics is vigorously debated in each case. One might mistakenly think that such a long tradition would mean that there would be little new to say about antitrust economics. Yet antitrust economics is surprisingly dynamic and changing. In part, this is because new decisions or legal developments, often in response to old economic developments, tend to raise new economic issues. In part, it is because the continued testing of economic logic in adversarial economic testimony leads to continued self-reflection. Given the rich literature...