Originally from Antitrust and Competition Laws
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Chapter Six - HISTORY LESSONS
The history of antitrust and competition laws fittingly describes and analyzes economic theory and legal doctrine. But it is also a story of how people have reacted to price hikes during famines and to large industrial firms perceived as threatening their livelihood and deeply held values. The author hopes that the reader of Antitrust and Competition Laws finds it interesting as a story of those people and the institutions they created.
History can also serve a more practical purpose. It can help us understand what is happening now and sometimes even suggest answers to current questions, including both broader questions like the effectiveness of U.S. antitrust law and narrower questions about a specific legal doctrine or the nuances of consumer welfare. Examples of the narrower questions are scattered throughout history. One example concerns the Roman and medieval European notions of a just price which might shed some light on the modern legal question of how to determine the reference price under laws that condemn excessive prices as an abuse of dominant position. Another example concerns the experience of the EU and other authorities in including non-competition criteria when reviewing restrictive agreements and mergers. This experience is relevant to calls in the U.S. to (re)introduce social or political policies into U.S. antitrust law.
More generally, history teaches us that interesting events rarely result from a single factor but rather from a blend of factors whose relative weights are often difficult to discern. The history of antitrust and competition laws is no exception to that general rule. For centuries (if not millennia), competition laws have reflected a shifting blend of factors, notably changes in economic conditions, developments in ideas about economic activity (or modern economic theory) and reconfigurations of political interests. U.S. antitrust law adds another ingredient to the blend: concerns about costs, administrability of legal rules and false positives. The effectiveness of antitrust and competition laws, as well as proposals for change, should carefully consider this complexity of factors.
Barry E. Hawk is former Director of the Fordham Competition (formally Corporate) Law Institute and former Partner with Skadden Arps (New York and Brussels). He is former Vice Chair of the ABA Antitrust Section and former Chair of the New York State Bar Association Antitrust Section, as well as Professor at Fordham Law School and Visiting Professor at Michigan Law School, Monash University Law School, New York University Law School and the University of Paris.