[In: Volume 4, Keith N. Hylton (ed)
Antitrust Law and Economics]
This collection of chapters on fundamental topics in antitrust was arranged with the goal of
presenting the subject in a manner that reflects modern thinking in both the law and the economics
of antitrust. That is not an easy task. Antitrust economics has become a very complicated field. It
requires specialization, and as a result it is quite difficult to stay abreast of both the law and
the modern economic treatments.
Any effort to provide a balance of legal and economic analysis, given the long history of the law
and the level of sophistication in modern economic research, will necessarily involve some sacrifice
of both approaches. I am not sure it is possible to present a book that offers the combination of
everything an antitrust law specialist would like to see, as well as everything an antitrust
economist would like to see. But I think it is better to sacrifice a bit from both of the endpoints
to produce something that blends the two approaches, which is what this volume attempts to do.
The argument for incorporating economic analysis in any modern discussion of antitrust law is
obvious today. American courts use economic reasoning to reach conclusions on the best policies to
adopt in antitrust cases. American antitrust litigation relies heavily on the input of experts
trained in economics and statistics. It would be educational malpractice to train any law student to
practice antitrust without communicating the importance of economic analysis to the student.
In Europe, the importance of economic analysis to antitrust (competition law as it is known in
Europe) is even greater than in the US. The European Commission (EC) tries to act as a scientific
body on matters of competition law. It employs economists to develop the competition norms that the
EC would like to enforce, and relies on economists to determine the soundness of its enforcement
actions. Moreover, since the European courts tend to defer to the EC on matters of policy,
economists have a much greater pull on the development of law in the EU than in the US. This has
provided enormous incentives for European economists to examine industrial organization issues at
the heart of competition law cases.
The argument for incorporating a sophisticated legal approach to the analysis of antitrust has
become less obvious today. But its importance should not be discounted. Economic analyses of
antitrust divorced from serious consideration of the law tend to meander off into issues that are of
little relevance to the courts. More importantly, and especially in the p. xiiUS, judges have to administer antitrust law,
not economists. Judges have to craft rules that can be applied consistently and predictably within
the courts. Judges have to consider the likelihood that any given rule will be applied erroneously
by future courts, and the costs of those mistakes. The rules that have been developed by courts
reflect these considerations. In order to apply economics in a manner that will be useful to courts,
the analysis has to be guided by a sense of what will work in application. Lawyers tend to have the
advantage on this question.
The authors who have contributed to this volume have the great advantage, in my view, of being
familiar with both the law and the economics of antitrust. I hope that this effort to synthesize the
two approaches to antitrust yields a sum greater than its parts.