Antitrust and the Bounds of Power The Dilemma of Liberal Democracy in the History of the Market

by Amato, Giuliano

• ISBN13: 9781901362299
• ISBN10: 1901362299
• Format: Hardcover
• Copyright: 1997-10-19
• Publisher: Hart Publishing

Summary

Since it first came into existence, antitrust law has become progressively more technical both in its form and in its manner of enforcement. Yet technicalities and doctrines give covert and not neutral solutions to a crucial dilemma which is of fundamental importance: how much private power is needed to preserve economic freedom from the intrusion of public power, and how much public power is needed to prevent private power becoming a threat to the freedom of others? In this lucidly written and challenging book, Giuliano Amato draws on his wide experience to examine the character of this dilemma and the way in which it has been addressed by legislatures and courts in the US and in Europe. His observations on the history and the doctrines of antitrust law and his conclusions as to how successfully the dilemma is being managed by the super economies of Europe and the US challenge conventional thinking. They will also stimulate economists and lawyers as well as business and lay people to consider more closely the future of antitrust laws across the globe.

Author Biography

Giuliano Amato is a Judge at the Italian Constitutional Court.

Table of Contents

Preface	vii	(2)
Table of Cases	ix	(4)
Table of Legislation	xiii
Antitrust: Introduction	1	(6)
On the surface-the technical profiles	1	(1)
In the foundations: the dilemma of liberal democracy	2	(5)
Part 1 Technical Profiles: the USA	7	(32)
1. Protection of competition or of freedom of contract?	7	(13)
From the common law to the Sherman Act	7	(3)
Early years of the Sherman Act	10	(4)
Prohibitions to protect market pluralism increase	14	(6)
2. Today's Subtle Weapons	20	(19)
The Chicago School	20	(4)
Evolution in the Supreme Court	24	(3)
Trends in recent cases	27	(6)
The present position in summary	33	(6)
Part II Technical Profiles: Europe	39	(56)
3. The Heritage of History	39	(7)
Europe's industrial culture	39	(1)
The Freiburger Ordoliberalen School	40	(1)
Early development of antitrust law	41	(2)
Antitrust in the European Community	43	(3)
4. "Restrictive" Agreements	46	(19)
The normative machinery	46	(1)
Vertical agreements	47	(7)
Horizontal agreements	54	(11)
5. Abuse of a Dominant Position	65	(13)
"Special responsibility"	65	(2)
Assessment of "dominant position"	67	(2)
Abuse as an "objective concept"	69	(3)
Individual types of abuse	72	(4)
In conclusion	76	(2)
6. Prohibitions of Dominant Position	78	(17)
Mergers: the ban and its limits	78	(10)
Antitrust against public monopolies	88	(7)
Part III Antitrust and the Bounds of Power	95	(35)
7. Drawing together the threads	95	(14)
Original aims and later evolution	95	(1)
In the USA	96	(2)
In Europe	98	(2)
The limits to antitrust law	100	(2)
Facing concentrated, competitive firms	102	(3)
Changing markets--what remains?	105	(4)
8. The Dilemma of Liberal Democracy	109	(21)
The dilemma of liberal democracy within the dilemma of efficiency	109	(4)
Towards autonomy of European antitrust from other common policies	113	(11)
The global market and tomorrow's antitrust	124	(6)
Index	130