Extraterritoriality, Antitrust, and the Pragmatist Style
Emory International Law Review, Vol. 22, p. 499, 2008
72 Pages Posted: 15 Apr 2009 Last revised: 16 Jun 2009
Date Written: 2008
In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by “pragmatism.” Taking this idea as its baseline, this Article’s central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism’s ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: “eclectic pragmatism,” as evidenced in the work of Thomas Grey and Daniel Farber, “economic pragmatism,” as espoused by Richard Posner, and “experimental pragmatism,” represented in the work of Charles Sabel, William Simon, and Michael Dorf. While these three styles are hardly determinative, they do suggest meaningfully different orientations, as illustrated in an analysis of F. Hoffman LaRoche Ltd. v. Empagran, the U.S. Supreme Court’s most recent extraterritorial antitrust decision. Unfortunately, once one sees the three pragmatisms in action, the results are less than satisfying, and hardly pragmatist.
Keywords: International Law, Antitrust, Jurisprudence, American Legal Thought
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