Kun taloustiede menetti otteensa amerikkalaisesta kilpailuvalvonnasta. Tapaustutkimus yhteiskunnallisen oikeustutkimuksen karikoista
Avainsanat:
kilpailuoikeus, kilpailun taloustiede, oikeushistoria, Chicagon koulukuntaAbstrakti
When economics lost its grip on American antitrust enforcement. A case study on the pitfalls of sociolegal studies
The key concepts of antitrust and competition law – monopoly, barriers to entry, competition, costs, consumer welfare, relevant markets, etc. – derive from economics. Economics also features prominently in antitrust enforcement when antitrust agencies and courts assess antitrust damages, investigate cartels, evaluate monopolisation, and estimate the likely effects of mergers on consumer welfare. As a consequence, antitrust law is a great candidate for sociolegal studies and a prime example of a productive joint venture between science and adjudication.
The article is a historical case study on the potential pitfalls of multidisciplinary legal research and legal decision-making, which include the tension between science and ideology and the possible democracy deficit of scientifically oriented adjudication.
A new epoch began in law and economics in the 1950s when a group of economists and legal scholars associated with the University of Chicago contested American antitrust enforcement of the era. Deeming it excessive and often irrational, they sought to dethrone some leading precedents to let the free market have more sway in safeguarding economic efficiency. Their research programme made its weight felt in antitrust policy in the 1970s and 1980s when enforcement turned more lenient.
Antitrust economics, however, turned more enforcement friendly in the 1970s, as game theory and empirical industrial organisation theory seemed to show that anticompetitive conduct was more likely and prevalent than the Chicagoans had assumed. American courts, the Supreme Court in particular, have resisted this subsequent turn in antitrust economics up until our time. Why and what do we have to learn about this sequence? As academic communities are rife with disagreement, and various constituencies may strategically seek to deploy scholarship to their advantage, a healthy scepticism about science-based adjudication safeguards democracy and the rule of law.
