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Antitrust and Trade Regulation

2007

Washington and Lee University School of Law

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Full-Text Articles in Law

Rules Versus Standards In Antitrust Adjudication, Daniel A. Crane Oct 2007

Rules Versus Standards In Antitrust Adjudication, Daniel A. Crane

Washington and Lee Law Review

Antitrust law is moving away from rules (ex ante, limited factor liability determinants) and toward standards (ex post, multi-factor liability determinants). This movement has important consequencesfor the structure of antitrust adjudication, including shifting ultimate decision-making down the legal hierarchy (in the direction ofjuries, trial courts sitting as factfinders, and administrative agencies) and increasing the importance of economic experts. The efficiency consequences of this trend are often negative. Specifying liability determinants as open-ended, unpredictable standards increases litigation costs, chills socially beneficial industrial practices, allocates decisionmaking on microeconomic policy to unqualified juries, andfacilitates strategic misuse of antitrust litigation by rent-seeking competitors. Instead …


The Predatory Pricing Puzzle: Piecing Together A Unitary Standard, Kimberly L. Herb Sep 2007

The Predatory Pricing Puzzle: Piecing Together A Unitary Standard, Kimberly L. Herb

Washington and Lee Law Review

No abstract provided.