Antitrust's Goals: Theories of Antitrust in the United States and Japan
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Description
Antitrust law, as it has developed in the United States over the past 110 years, has been firmly focused on particular disputes. Litigants bring their disputes over particular business practices to courts to determine whether these business practices violate the law and whether they cause any injury. Courts have then been required to understand the factual context of these disputes, to understand how industries function and the reasons why the parties have engaged in the disputed transactions. This has been true from the great Standard Oil monopolization litigation in the early part of the 20th Century to the great Microsoft monopolization litigation at the century's end; it has been true of the price-fixing cartel of Socony-Vacuum and of the advertising restrictions of the California Dental Association; it has been true of the distribution restraints of the Dr. Miles Medical Company and of GTE-Sylvania. But while it is true that antitrust has been focused on facts, it is also the case that antitrust has been animated by theory. By “antitrust theory” I mean the effort to assess the purposes or goals of antitrust and to construct a framework for analyzing antitrust disputes which will be consistent with those purposes. Antitrust theory may have varied over the years in the United States, but no set of “facts” could be evaluated without a theoretical organizing principal. Otherwise, courts would be swamped by the facts and would not know how to sift the relevant from the irrelevant, nor would they know how to judge the effect of the facts they “found”. In the first part of this essay I will discuss antitrust theory's development in the United States, including the “new antitrust” which is now taking shape. The second part will discuss the antitrust theory that animated the original drafting of Japan's Antimonopoly Act, theory that could help Japan's antitrust enforcement today. In the concluding part I will offer some observations on the similarities between the new antitrust in the United States and Japan's original intent and the extent to which antitrust theory may be important in the coming internationalization of antitrust.
Source Publication
Competition Policy in the Global Trading System
Source Editors/Authors
Clifford A. Jones, Mitsuo Matsushita
Publication Date
2002
Recommended Citation
First, Harry, "Antitrust's Goals: Theories of Antitrust in the United States and Japan" (2002). Faculty Chapters. 618.
https://gretchen.law.nyu.edu/fac-chapt/618
