The Intellectual DNA of Modern U.S. Competition Law for Dominant Firm Conduct: The Chicago/Harvard Double Helix

Monday, January 1st, 2007 at 12:00 am by William E. Kovacic
William E. Kovacic, The Intellectual DNA of Modern U.S. Competition Law for Dominant Firm Conduct: The Chicago/Harvard Double Helix, 2007 Colum. Bus. L. Rev. 1

This Article seeks to improve upon the Chicago-centric interpretation of the foundations of modern U.S. competition law and its emphasis upon the intellectual contest between Chicago and Post-Chicago perspectives. A more accurate view of the intellectual forces that have shaped the modern U.S. antitrust system can illuminate future developments in ideas and institutional arrangements that might adjust the doctrinal principles and enforcement norms that guide U.S. competition policy today. The Article complements the work of antitrust scholars who have previously identified important elements of consensus across different schools of thought or have highlighted how researchers outside of the Chicago School promoted a retreat from the more interventionist approaches that prevailed from the 1940s through the early 1970s. In particular, this paper reinforces the insights of scholars such as Herbert Hovenkamp and William Page who have emphasized the contributions of the modern Harvard School–especially Phillip Areeda and Donald Turner–to developments in doctrine and policy that retrenched the U.S. antitrust system and often are said to derive chiefly or solely from the Chicago School’s influence. I argue that the intellectual DNA of U.S. antitrust doctrine governing single-firm conduct today is not exclusively or predominantly a single strand of Chicago School ideas. Rather, the intellectual DNA of modern U.S. antitrust doctrine is chiefly a double helix that consists of two intertwined chains of ideas, one drawn from the Chicago School of Robert Bork, Richard Posner, and Frank Easterbrook, and the other drawn from the Harvard School (HS) of Phillip Areeda, Donald Turner, and Stephen Breyer. In the combination of Chicago School and Harvard School perspectives, one sees shared prescriptions about the appropriate substantive theories for antitrust enforcement involving dominant firm conduct (Chicago’s main contribution to the double helix) and cautions about the administrability of legal rules and the capacity of the institutions entrusted with implementing them (Harvard’s main contribution to the double helix). Scholars not affiliated with the modern Chicago or Harvard schools influence modern antitrust analysis in the courts, but the Chicago/Harvard double helix provides the basic intellectual DNA for U.S. antitrust jurisprudence today and, by shaping doctrine, constrains the enforcement choices of antitrust agencies. The double helix of ideas does not preclude enforcement, but it has supported the creation of presumptions that elevate the hurdles that antitrust plaintiffs must clear to prevail in the courts. By describing more clearly and accurately the sources and nature of the presumptions that guide the operation of the U.S. antitrust system today, this paper tries to indicate what developments would serve to adjust the treatment of dominant firm behavior in the future and to suggest where such adjustments might lead.

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Commissioner, U.S. Federal Trade Commission