Abstract

http://ssrn.com/abstract=2293508
 


 



Understanding Behavioral Antitrust


Avishalom Tor


Notre Dame Law School

July 13, 2013

Texas Law Review, Vol. 92, 2013
Notre Dame Legal Studies Paper No. 1446

Abstract:     
Behavioral antitrust – the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality – is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike. This Article shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions. Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: First, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, firms, and other institutions both facilitate and inhibit rational behavior by antitrust actors; and, third, they erroneously equate all deviations from standard rationality with harm to competition. After establishing the central role of rationality assumptions in present-day antitrust and reviewing illustrative behavioral analyses across the field – from horizontal and vertical restraints, through monopolization, to merger enforcement practices – the Article examines the three classes of mistakes, their manifestation, and their consequences in antitrust scholarship. It concludes by offering two sets of essential lessons that the behavioral approach already can offer to make antitrust law and policy more realistic and effective in protecting competition: One concerning the value of case-specific evidence in antitrust adjudication and enforcement, the other showing how antitrust law can and should account for systematic and predictable boundedly rational behavior that is neither constant nor uniform.

Number of Pages in PDF File: 90

Keywords: competition, rationality, behavioral law and economics

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Date posted: July 15, 2013 ; Last revised: August 23, 2013

Suggested Citation

Tor, Avishalom, Understanding Behavioral Antitrust (July 13, 2013). Texas Law Review, Vol. 92, 2013; Notre Dame Legal Studies Paper No. 1446. Available at SSRN: http://ssrn.com/abstract=2293508 or http://dx.doi.org/10.2139/ssrn.2293508

Contact Information

Avishalom Tor (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0780
United States
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