Comments on: More Thoughts on Free Market Orthodoxy in Antitrust http://truthonthemarket.com/2007/07/16/more-thoughts-on-free-market-orthodoxy-in-antitrust/ Academic commentary on law, business, economics and more Sat, 02 Jun 2012 12:17:14 +0000 hourly 1 http://wordpress.com/ By: Paul Stancil http://truthonthemarket.com/2007/07/16/more-thoughts-on-free-market-orthodoxy-in-antitrust/#comment-6861 Tue, 17 Jul 2007 20:59:01 +0000 http://www.truthonthemarket.com/2007/07/16/more-thoughts-on-free-market-orthodoxy-in-antitrust/#comment-6861 Excellent post, Josh. On the antitrust side of things, there’s a pretty interesting historical dynamic at work, too. Some seem to assume that antitrust law and economics tied the knot only with the rise of Chicago School price theory. I’d argue that they actually got married considerably earlier, and to stretch the analogy well beyond the breaking point, that there’s been no divorce despite the fact that both parties have changed quite a bit since the wedding (my wife might have the same complaint).

The earlier marriage (seen in a few scattered cases, and more obviously in agency enforcement philosophy) probably happened with the rise of the Harvard/SCP school of thought. How might this play out in the Supreme Court? Hard to say, save that there’s a good bit of tension between the Court’s traditional deference to precedent and a decision to hitch your star to a social science that could take you anywhere. At the end of the day, you might end up with economic theory as a sort of meta-precedent, but with the Court still facing strong incentives to comply with traditional forms. Sorta looks like Leegin, in other words.

The question that interests me: Does meta-precedential reliance upon social science or other potentially changeable theory make sense in a common law system? I think it probably does, but it’s certainly a split with traditional stare decisis.

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