Is Intent Relevant?

58 Pages Posted: 31 Jan 2012 Last revised: 4 Nov 2012

See all articles by Maurice E. Stucke

Maurice E. Stucke

The Konkurrenz Group; University of Tennessee College of Law

Date Written: January 26, 2012

Abstract

The role of intent in federal antitrust cases has been characterized as “unsettled” and “controversial.” Many lower courts, scholars, and practitioners recognize that intent evidence is relevant in antitrust cases. But jurists and scholars oriented by neoclassical economic theory disagree.

Using the developments in the behavioral economics literature, this Article reexamines the relevancy of intent evidence in civil antitrust cases. The analysis is organized around two issues: First is intent legally relevant in civil antitrust cases? Second if intent evidence is relevant, for what purpose?

Intent evidence, this Article concludes, is relevant. The behavioral economics experiments confirm what many have long accepted: intent matters. Greed does not always motivate us. Greed is not necessary for a market economy to thrive. Competition need not be zero-sum warfare. But the literature has two important implications. First, intent may be helpful, but to a lesser degree than some courts and scholars assume, in assessing the likely anti-competitive effects. Second, intent evidence can be more important than courts may otherwise assume under neoclassical theory. People rely on intent when coding and punishing behavior as unfair and unreasonable, which in turn can promote a market economy and overall societal welfare.

Keywords: Behavioral Economics, Self-Interest, Antitrust, Monopoly, Sherman Act, Intent, Fairness

JEL Classification: K21, L40, L41, L44

Suggested Citation

Stucke, Maurice E., Is Intent Relevant? (January 26, 2012). 8 J. L. Econ. & Pol'y 801 (2012); University of Tennessee Legal Studies Research Paper No. 178. Available at SSRN: https://ssrn.com/abstract=1992761 or http://dx.doi.org/10.2139/ssrn.1992761

Maurice E. Stucke (Contact Author)

The Konkurrenz Group ( email )

5335 Wisconsin Ave., NW
Suite 440
Washington, DC 20015
United States

University of Tennessee College of Law ( email )

1505 W. Cumberland Ave.
Knoxville, TN 37996
United States
865-974-9816 (Phone)

HOME PAGE: http://law.utk.edu/people/maurice-stucke/

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