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Economic Theory and Judicial Process: A Case Study

The basic inability of the antitrust laws to upset monopoly absent proof of predatory behavior reflects the fundamental inconsistency between economic analysis, which emphasizes industry performance, and legal theorizing, which emphasizes business conduct. Professor Coase, reflecting on the development of industrial organization, keenly observed: "The ways in which the [monopoly] problem was viewed by the lawyers [judges and advocates] were accepted as the ways in which we should approach the problem. The opinions of the judges often became the starting point of the analysis, and an attempt was made to make sense of what they had said." 1 Attempts to resolve monopoly issues within the constraints of judicial interpretations of the law (requiring proof of predatory conduct) have deprived antitrust analysis of the benefits of economic theory, and led to self-serving interpretations of business conduct, and procrustean efforts to bring monopoly within the gamut of Section 2.