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Abandoning Antitrust's Chicago Obsession: the Case for Evidence-Based

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Abandoning Antitrust's Chicago Obsession: the Case for Evidence-Based ABANDONING ANTITRUST'S CHICAGO OBSESSION: THE CASE FOR EVIDENCE-BASED ANTITRUST Joshua D. Wright, George Mason University School of Law Antitrust Law Journal, Forthcoming George Mason University Law and Economics Research Paper Series 12-39 ABANDONING ANTITRUST’S CHICAGO OBSESSION: THE CASE FOR EVIDENCE-BASED ANTITRUST JOSHUA D. WRIGHT* George Stigler began his famous paper on the Theory of Oligopoly with the observation that “[n]o one has the right, and few the ability, to lure econo- mists into reading another article on oligopoly theory without some advance indication of its alleged contribution.”1 This observation applies twice over to attempts to lure antitrust lawyers and economists to read yet another article on the roles of the competing “schools” in antitrust theory. I begin with a clear statement of this article’s proposed contribution. The first of my three goals in this article is to describe a fundamental chal- lenge facing modern and future antitrust institutions: the “model selection problem.” This problem has grown in magnitude as the number of competing theoretical models in the industrial organization literature has proliferated over the past thirty years. The Post-Chicago School first challenged the Chi- cago School’s intellectual dominance of antitrust jurisprudence. Now, for each form of business arrangement, there exist an endless number of theoreti- cal models of its causes and welfare consequences, each with different policy implications. While the ratio of theoretical models to empirical evidence has soared over the past thirty years, antitrust institutions lack decisionmaking protocols for choosing among competing models. Courts and enforcement agencies retain broad discretion in selecting theoretical models ad hoc, tailor- ing decisions to the arbiter’s relative economic sophistication, intellectual pri- ors, or even desired result. A fundamental obstacle to the continued development of antitrust doctrine is that there are few institutional mecha- nisms capable of committing courts and enforcement agencies to rely upon the theoretical model best supported by empirical evidence. The model selec- tion problem can cause a tribunal to select an inapplicable economic theory * Professor of Law, George Mason University School of Law and Department of Economics. I thank Bruce Kobayashi, Timothy Muris, William Page, Steve Salop, and Judd Stone for valua- ble comments, and Lisa Madalone and Scott Hazelgrove for research assistance. 1 George J. Stigler, A Theory of Oligopoly, 72 J. POL. ECON. 44, 44 (1964) [hereinafter A Theory of Oligopoly]. 301 302 ANTITRUST LAW JOURNAL [Vol. 78 for a particular case and, consequently, to adopt inefficient substantive rules or presumptions, which can affect the economic model that courts are likely to apply in future cases involving similar business arrangements. My second goal is to demonstrate that the intense focus upon so-called “schools” within the antitrust community, and especially the vaunted Chicago School, has exacerbated the model selection problem. Shorthand labels describing these schools of thought––the “Chicago School,” “Post-Chicago School,” “Neo-Chicago School,” and the emerging “Behavioral School”––while occasionally offering useful descriptions of general themes within antitrust thought, have themselves become barriers to the continued development of economically sound antitrust law and policy. These labels distract scholars and regulators alike from the ultimate substantive question in antitrust analysis: which model best explains the business conduct at issue in light of the available data. Similarly, these labels distract from the ultimate institutional challenge facing antitrust law and policy: how to ensure that the appropriate model, once identified, becomes the basis for antitrust decision- making in a given case. This criticism applies with equal force to virtually all recent discussions of antitrust schools of thought and their implications for identifying desirable competition policy. This is an unfortunate development because, as it is with many shorthand references, these labels are certainly capable of beneficial usage. Such informative usage may once have been the case; consistent misuse of these labels suggests such a time is long past. The Neo-Chicago School, which is the subject of this symposium, does not escape this criticism. The Neo-Chicago School could be interpreted as arising largely as an exercise in marketing—rebranding the Chicago School in light of the criticisms (rightly or wrongly) it has received from the antitrust com- munity, as the “softer, gentler, and new and improved” Chicago School, more friendly to incorporating Post-Chicago insights and with an even greater em- phasis upon empirical evidence. As I will discuss below, if this is indeed the case, the marketing strategy stands upon inaccurate and misleading assump- tions about the Chicago School. In the end, the Neo-Chicago School offers little if any true product differentiation from its predecessor. Moreover, it arises in the midst of a competition policy discourse in which the greatest value lies in solving institutional and methodological questions—a subject upon which the Neo-Chicago School has little new insight to offer. My third goal is to offer a modest proposal to help solve the model selec- tion problem outlined above. This proposal has two major components. First, scholars ought to abandon––immediately, and at every possible opportu- nity––the terms “Chicago School,” “Neo-Chicago School,” “Post-Chicago School,” and the like. I propose in its place a principle embraced by virtually all antitrust observers: a commitment to testing economic theories with eco- nomic knowledge and empirical data to support those theories with the best 2011] ABANDONING ANTITRUST’S CHICAGO OBSESSION 303 predictive power. This general principle encompasses a commitment to aban- don the presently intense reliance upon these labels as a useful consideration either in identifying the right theory to explain the conduct at issue in a partic- ular case or in developing more general substantive rules and norms of com- petition policy. I call this approach “evidence-based antitrust.” The benefits of such a shift in focus are obvious: both regulators and scholars may emphasize the key issue of how well the data support competing theories that may be used to form the basis of judicial and regulatory decisionmaking. Of course, replacing one set of slogans with another slogan is no solution in itself. A central theme of my article is that the antitrust community has proven that it cannot use these shorthand approaches in a productive manner. Any such proposal therefore must identify institutional commitments that would improve the status quo. I therefore also discuss several promising approaches to embedding an appreciation for empirical testing more deeply within anti- trust institutions. I. THE VARIOUS SCHOOLS OF ANTITRUST THOUGHT A. DEFINING THE CHICAGO SCHOOL OF ANTITRUST2 The contributions of the Chicago School to antitrust economics, and their positive influence on the evolution of antitrust doctrine, are well known.3 Those contributions need not be reexamined in their entirety here. However, a working definition of the Chicago, Post-Chicago and Neo-Chicago Schools of antitrust thought are required to demonstrate how a disproportionate emphasis on these labels has distorted competition policy debates. It is fruitful first to discuss what the Chicago School is clearly not. The Chicago School of antitrust economics is not merely a set of normative prescriptions about antitrust law, such as to “let the market solve it.”4 It is easily forgotten that Chicagoans provided the intellectual building blocks for 2 See Joshua D. Wright, The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond, COMPETITION POL’Y INT’L, Autumn 2007, at 25. 3 See generally Herbert H. Hovenkamp, The Rationalization of Antitrust, 116 HARV. L. REV. 917 (2003) (reviewing RICHARD A. POSNER, ANTITRUST LAW (2d ed. 2001)); William E. Kovacic, The Intellectual DNA of Modern U.S. Competition Law for Dominant Firm Conduct: The Chicago/Harvard Double Helix, 2007 COLUM. BUS. L. REV. 1 [hereinafter Intellectual DNA]; William H. Page, The Chicago School and the Evolution of Antitrust: Characterization, Antitrust Injury, and Evidentiary Sufficiency, 75 VA. L. REV. 1221, 1229–31 (1989); Sam Peltzman, Aaron Director’s Influence on Antitrust Policy, 48 J.L. & ECON. 313 (2005); Richard A. Posner, The Chicago School of Antitrust Analysis, 127 U. PA. L. REV. 925 (1979); Id. 4 See, e.g., Thomas J. Rosch, The Redemption of a Republican (June 1, 2009), available at http://www.ftc.gov/speeches/rosch/090601redemption.pdf (“I have questioned the basic tenets of orthodox Chicago School law and economics as those tenets were set forth by Judge Robert Bork in The Antitrust Paradox––that antitrust law is concerned with maximizing societal welfare; that markets are generally perfect.”). 304 ANTITRUST LAW JOURNAL [Vol. 78 the modern theory of oligopoly,5 have been among the staunchest supporters of criminal enforcement for price-fixing offenses,6 established the modern “raising rivals’ costs” theories,7 and offered the most well-known empirical evidence supporting rival-cost theories.8 Nor, despite characterizations to the contrary, does the Chicago School re- present a monolithic entity.9 The mischaracterizations usually ignore the sub- tle variation in economic approaches within the Chicago School in favor of the view
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