Washington and Lee Law Review Volume 64 | Issue 1 Article 3 Winter 10-1-2007 Rules Versus Standards in Antitrust Adjudication Daniel A. Crane Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Antitrust and Trade Regulation Commons Recommended Citation Daniel A. Crane, Rules Versus Standards in Antitrust Adjudication, 64 Wash. & Lee L. Rev. 49 (2007), https://scholarlycommons.law.wlu.edu/wlulr/vol64/iss1/3 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact
[email protected]. Rules Versus Standards in Antitrust Adjudication Daniel A. Crane* Abstract Antitrust law is moving away from rules (ex ante, limited factor liability determinants) and toward standards (ex post, multi-factor liability determinants). This movement has importantconsequencesfor the structure of antitrust adjudication,including shifting ultimate decision-making down the legal hierarchy (in the direction ofjuries, trial courts sitting as fact- finders, and administrative agencies) and increasing the importance of economic experts. The efficiency consequences of this trend are often negative. Specifying liability determinants as open-ended, unpredictable standards increases litigation costs, chills socially beneficial industrial practices,allocates