63 Pages Posted: 14 Dec 2000
Antitrust for most of the past seventy years has relied heavily on economic discourse, and on price theory in particular in recent times. There have been fierce debates on what types of economics are the most useful and whether other values inform antitrust law and policy, but economics has reigned supreme, especially during the modern era.
This is quite peculiar in the following sense. Antitrust is a body of law that regulates business behavior, but antitrust has adopted a language both different, and at odds with, the language of the very people being regulated. Even worse, antitrust has chosen a unique discourse that is self-denying as to one of the very essences of antitrust enforcement. Price theory is inherently suspicious of the claim that market power is achievable. In contrast, business leaders are trained in undergraduate and graduate business programs that the very opposite is true: that market power is achievable and various business and management theories provide a sound analytical basis for achieving such power in the real world.
This article is both a history and genealogy of the discourse used in the discipline of antitrust law. My thesis is that antitrust adopted economics as its primary discourse as part of the creation of a separate discipline of antitrust law, separate from a general field of business law or corporate and securities law. The split began in the 1920s and came to full fruition in the1950s. Without suggesting that this was a conscious or deliberate choice, antitrust evolved into a new speciality field with its own players, its own professional organizations, its own status games and hierarchies, and most importantly, its own language. Economics became that language as part of a process of separation from the general business bar which remained tied to the language of business, a language that was increasingly discredited socially and professionally during the Great Depression, the key period when antitrust became its own field.
My paper is also a plea for a more inclusive discourse for modern antitrust. Business people are versed from the first days of business school in the language and techniques of such techniques as strategic planning and brand management. They strive for and often achieve (at least in their view) significant lasting market power. As the Chicago school style of law and economics loses its vise grip on the discipline of antitrust, lawyers, judges, and policy makers need to be conversant with all facets of business theory and discourse, not just economic theory. In short, the decision makers we regulate take this stuff seriously, so should we.
Keywords: antitrust, jurisprudence, law and economics
JEL Classification: K21, A12, L40
Suggested Citation: Suggested Citation
Waller, Spencer Weber, The Language of Law and the Language of Business. Case Western Law Review, Vol. 52, p. 283, 2001. Available at SSRN: https://ssrn.com/abstract=253732