Author
Abstract
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.
Suggested Citation
Stavros Makris, 2021.
"Openness and Integrity in Antitrust,"
Journal of Competition Law and Economics, Oxford University Press, vol. 17(1), pages 1-62.
Handle:
RePEc:oup:jcomle:v:17:y:2021:i:1:p:1-62.
Download full text from publisher
As the access to this document is restricted, you may want to search for a different version of it.
Corrections
All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:oup:jcomle:v:17:y:2021:i:1:p:1-62.. See general information about how to correct material in RePEc.
If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.
We have no bibliographic references for this item. You can help adding them by using this form .
If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.
For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Oxford University Press (email available below). General contact details of provider: https://academic.oup.com/jcle .
Please note that corrections may take a couple of weeks to filter through
the various RePEc services.