Adam Chilton and Filippo Maria Lancieri on the Chicago School’s Limited Influence on International Antitrust

The Chicago School’s Limited Influence on International Antitrust

A group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenets of US antitrust law in the 1950s. This movement—which became known as the Chicago School of Antitrust Analysis—profoundly altered the course of American antitrust scholarship, regulation, and enforcement. Antitrust law became increasingly informed by economic theories with formalistic per se rules giving way to a case-by-case assessment of the economic effects of firm conduct. Many previously established antitrust doctrines—from the challenging of vertical mergers to the per se treatment of several forms of unilateral conduct by monopolies—were gradually reversed as a result. Although antitrust scholars may disagree on the appropriateness of the Chicago School ideas, few would question the profound influence those ideas have had on US antitrust policy.

What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. Anecdotal examples indicate a complex picture. For instance, several countries recognize an efficiency defense—ie efficiency-driven justifications used to approve an otherwise anti-competitive merger—in assessing the competitive effects of mergers. This practice is very much in line with the Chicago School ideas. But at the same time, enforcement against unilateral conduct of dominant firms remains vigorous in many jurisdictions, including the EU. This practice is in tension with the Chicago School view that unilateral conduct rarely calls for an antitrust intervention. Moreover, Chicago Scholars also strongly condemned the use of antitrust laws for redistributive ends or the promotion of industrial policy. For them, it would be disconcerting to learn that several countries list the promotion of employment or of national industries as a goal of antitrust laws or evaluate mergers based on whether they advance ‘public interest’.

In a forthcoming paper in The University of Chicago Law Review, we seek to go beyond these anecdotes and empirically explore whether ideas embraced by the Chicago School diffused internationally. To do so, we leverage two novel datasets on antitrust regimes around the world. The first—the Comparative Competition Law Dataset—provides detailed coding on the provisions of the antitrust statutes of 131 jurisdictions from their first adoption through 2010. The second—the Comparative Competition Enforcement Dataset—provides data on the enforcement resources and activities of 112 antitrust agencies between 1990 and 2010. Together, these datasets (which we have recently made publicly available) provide a detailed picture of the world’s antitrust regimes across countries and over time. 

Read more at Oxford Business Law Blog