Rules Versus Standards in Antitrust Adjudication

63 Pages Posted: 29 Aug 2006  

Daniel A. Crane

University of Michigan Law School

Abstract

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 consequences for the structure of antitrust adjudication, including shifting ultimate decision-making down the legal hierarchy (in the direction of juries, trial courts sitting as fact-finders, 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 decision-making on microeconomic policy to unqualified juries, and facilitates strategic misuse of antitrust litigation by rent-seeking competitors. Instead of following a generalized preference for standards, courts should consider five factors in choosing the ex ante precision of liability determinants: (1) whether the lawsuit was brought by the government or a private party; (2) whether the legal determinant would create liability or immunize against it; (3) whether the remedy sought is prospective (i.e., injunctive) or retrospective (i.e., damages); (4) whether the conduct is idiosyncratic or paradigmatic; and (5) whether the misconduct alleged is collusion or exclusion.

Keywords: antitrust, rules and standards

Suggested Citation

Crane, Daniel A., Rules Versus Standards in Antitrust Adjudication. Washington and Lee Law Review, Vol. 64, 2007; Cardozo Legal Studies Research Paper No. 162. Available at SSRN: https://ssrn.com/abstract=927293

Daniel A. Crane (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-615-2622 (Phone)

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