The empty promise of behavioral antitrust.
The problems of indeterminacy outlined above are not limited to substitution and entry. Because behavioral antitrust operates only in hindsight, it has no value for policymakers charged with predicting whether markets can fully and promptly correct short-term imperfections or whether intervention is required to restore competition. Consider three business practices that neoclassical economics and game theory have determined generally to be efficient but occasionally harmful to competition: predatory pricing, unilateral refusals to deal, and product tying and bundling.
Predatory pricing involves a dominant firm setting its price below cost to entrench its monopoly, principally by denying fringe rivals the scale necessary to achieve economies in production and by fostering an aggressive reputation so as to deter entry. (126) Concerned with the risk of mistakenly deterring price-cutting, and informed by the game-theoretic literature showing that the strategy is generally an irrational and ineffective means by which to exclude equally or more efficient competitors, the law takes a skeptical view of predatory-pricing claims. (127) To prevail, a plaintiff must establish not only that a dominant firm set price below cost, but also that a dangerous probability exists that in the future the predator will recoup its losses. (128) This law, which demands much of a plaintiff, reflects the premise that below-cost pricing will not usually harm competition, as future entry will promptly remedy any subsequent attempt by the would-be predator to exercise market power and recoup its losses. (129)
Unilateral refusals to deal occupy a controversial position within competition law. When a dominant firm controls a physical or technological infrastructure necessary for viable operation in a market, competitors denied access to the infrastructure may seek a court order compelling the dominant firm to share its infrastructure on fair and reasonable terms. (130) U.S. law recognizes a duty to deal only in narrow circumstances--specifically, where the parties formerly engaged in a mutually profitable course of dealing, and when the dominant party terminated that dealing suddenly and without a valid business justification. (131) The law takes this view out of concern that mandatory sharing would reduce incentives to invest ex ante. (132)
Product tying arises when a dominant seller requires its customers to purchase a second good (the tied product) as a condition of buying the tying good. (133) These restraints often yield overriding efficiencies, particularly where the items sold together are economic complements. (134) The practices reduce search and negotiation costs, entail production-side savings, facilitate interoperability, and typically result in lower combined prices and higher output because they eliminate the double marginalization caused by divided ownership. (135) They can sometimes harm competition, though, by denying rivals scale in the tied product markets or by bolstering the dominant firm's position in the tying market. (136) Although price theory suggests that even a monopolist in the tying-goods market cannot profitably charge a double markup (137) by using tie-ins to achieve monopoly in an otherwise-competitive tied market, this outcome necessarily holds true only for fixed-proportions tying. (138) It also ignores the possibility that a dominant share of a tied market may enable the tying firm to realize future profit opportunities in that market. (139)
Under today's antitrust rules, a firm can violate the law by product tying only if it has monopoly power in the tying product market and its actions substantially foreclose its rivals in the market for the tied product. (140) Many economists have argued that the Supreme Court should relax these rules. (141) The strength of their argument hinges in part on whether consumers will react rationally to contractual restraints that require them to purchase the tied products only from the tying firm: in particular, whether they will add the price of the tied product to the purchase price of the tying good. If buyers rationally combine the present tying-product price and the later tied-good price, sellers will be unable to charge a second monopoly price. If buyers discount the future, or otherwise focus only on the tying-good price that they have to pay today, sellers may be able to extract a second monopoly price later when lock-in has occurred. (142) The strength of their arguments also depends on the assumption that new entry is likely to occur in the tying and tied product markets, should the tie-in prove inefficient.
Because a similar analysis applies to these practices as to the overarching questions of substitution and entry, we provide a table highlighting the offsetting insights of a non-exhaustive list of behavioral biases on the ultimate effect of the restrictions:
Restraint Biases Protecting Biases Harming Competition Competition Predatory Irrational escalation Loss aversion Pricing Bandwagon effect Hyperbolic Endowment effect discounting Optimism bias Pessimism bias Status quo bias Anchoring Aversion to sunk Overconfidence bias costs Overconfidence bias Refusal to Optimism bias Loss aversion Deal Anchoring bias Sunk-cost aversion Bandwagon effect Pessimism bias Reputational goals Exaggerate low Incentive to grow probability share Status quo bias Availability bias Tying and Loss aversion Anchoring bias Bundling Availability bias Availability bias Framing effect Endowment effect Anchoring bias Sunk-cost aversion Bandwagon effect Post-purchase Overconfidence bias rationalization Selective perception
Thus, behavioral antitrust is a disorganized amalgam of context-dependent biases that operate in varying directions and to varying degrees. No behavioral theory of antitrust exists, nor does one appear to be possible. Indeed, the preceding analysis illustrates the fatal problems that result from the absence of an organizational principle in complex environments with many explanatory variables. Next, we critique the scholarship that has promoted behavioral antitrust. We find it to be deficient and unconvincing.
III. Debunking the Behavioral Antitrust Literature
Although still in its infancy, the behavioral antitrust literature has reached the point where an overarching thesis has emerged, comprised of three related propositions. According to the first tenet, the conventional economic account of antitrust fails because its analysis rests on unrealistic assumptions of rationality and market efficiency. (143) Second, antitrust's attachment to neoclassical economics blinds policymakers to evidence at variance with the conceptually attractive, but ultimately erroneous, notion that irrational behavior either does not exist or cannot endure. (144) As a corollary, behavioral antitrust scholars almost uniformly take issue with what they perceive to be the laissez faire nature of the modern antitrust enterprise. (145) The third proposition argues that, because firms and consumers are systemically irrational, society cannot rely on private contract to fashion efficient outcomes. (146) For certain scholars, this means that antitrust's relatively passive role in modern times should give way to a policy founded on "promoting" competition. (147)
In assailing the rationality foundation of modern antitrust theory, however, behavioral scholars reveal a serious misapprehension of their target. For the reasons that follow, the academic literature promoting behavioral economics' application to antitrust is flawed.
A. Behavioral Scholars Err in Criticizing the "Realism" of Neoclassical Antitrust Economics
Above all, the behavioral antitrust literature criticizes the economic assumptions of rationality, profit maximization, and efficiency that underlie modern competition policy. (148) This critique, though, targets a straw man, characterizing the standard economic account in inaccurate and easily caricatured terms. One commentator derides "the suffocating straitjacket of neoclassical economics and its unrealistically static models," (149) while others urge that "one cannot assume that markets operate as efficiently as the Chicago School predicts." (150) Yet another maintains "the assumption that humans behave as perfectly rational, profit-maximizing actors has taken center stage in modern antitrust law." (151) In contrast, "behavioral economics ... has questioned the assumption that humans always behave perfectly rationally." (152) Former FTC Commissioner J. Thomas Rosch, a prominent advocate of behavioral antitrust, has suggested that "the orthodox and unvarnished Chicago School of economic theory is on life support, if it is not dead." (153)
If this criticism were true, it would be hard not to embrace the realistic behavioral enterprise. But this critique exists only in the writings of behavioral scholars, who conjure an image sharply at odds with the reality of price theory. The perfect-competition model is an abstraction used to facilitate analysis, not a description of every bit of economic life. (154) Used as a benchmark, the model shows that market inefficiencies are ubiquitous. (155) The notion that the neoclassical model of perfect competition reflects the neoclassical view of actual competition is seriously mistaken. (156)
Behavioralists' criticism of rational choice theory's assumed rationality is equally wrong. Neoclassical models assume profit and utility maximization by firms and consumers to generate predictions. They make no claim that individual, real-world actors are invariably rational. Rather, they maintain that the impulse to maximize profit and utility--along with opportunities for learning, competitive pressures, and canceling-out effects--is sufficiently strong that the explanatory variables price theory highlights correlate in statistically significant fashion with actual market outcomes. In short, the conventional approach enjoys a strong organizational principle that facilitates specific predictions.
When empirical evidence is unavailable, policymakers can use the forecasts price theory generates with relatively high confidence. Conversely, when empirical evidence is available, agencies and courts can rely on it. In that event, econometricians can also use the data to test the accuracy of the theory's predictions. The more closely the theory matches the observed data, the more confidently policymakers can apply price theory when they next determine the propriety of impugned commercial behavior in an evidence-deprived environment. To the extent that mismatches emerge, economists can modify and improve the theory to reflect the new data.
Behavioralists miss the point in chastising neoclassical economics for failing to account for observed irrationality or imperfect competition. In assessing the strength of a theory, the relevant question is not whether its underlying assumptions are perfectly realistic; it is whether they are realistic enough to generate accurate predictions. (157) The behavioral literature regularly asks the wrong question about the strength of the conventional approach. Consider its criticism of rational choice theory for failing to account for organizational learning, a process by which firms improve their internal decisionmaking: (158)
Neoclassical economic theory, with its assumption of rational agents, offers few insights on such intrafirm behavior. Logically, if firms behaved as rational profit maximizers, one would not expect this form of competition. Rational firms could not enjoy a competitive advantage in how they search and incorporate knowledge, since they all automatically search for and act upon the optimal amount of information. One would therefore not expect business executives to expend resources on improving their decision processes if they indeed behaved as rational profit maximizers. (159)
Putting aside its incorrect characterization of the neoclassical literature, which routinely models asymmetric and other imperfect forms of information, this argument misses the point. The important question is whether rational choice models predict commercial behavior more accurately and easily than other available theories. (160) To the extent that firms remedy poor decisionmaking through organizational learning, their ultimate behavior is more likely to track the predictions of neoclassical economics. That is the question that matters to antitrust policy.
B. In Focusing on Empiricism, Behavioral Antitrust Reveals Its Emptiness
According to a leading article promoting behavioral antitrust, "whatever its label, behavioral economics at its core is empirical." (161) No doubt an accurate representation, this statement seems intended as an indictment of neoclassical economics for its supposed detachment from data. But neoclassical economics is deeply empirical. Deductive economists deploying neoclassical theory use data regularly to gauge the accuracy of the underlying theory and its predictions. (162)
This fact has escaped some of the academics advancing behavioral antitrust. One of them asserts that "it cannot be seriously disputed that empirically testing rational choice theory's predictive value, and its simplistic (and some may say unflattering) assumptions on human behavior, has beneficial value." (163) But empirical validation of that very kind is a defining characteristic of neoclassical economics. (164) It occurs at the end of the deductive process, while behavioral antitrust, being (nominally) inductive, begins with empirical observation. Because it is only nominally inductive, however, behavioral antitrust ends where it starts, at empirical observation. It induces no general principles nor postulates from what it observes.
Other scholars contend that behavioral economics "draws into question our reliance on economic theory when the evidence suggests otherwise." (165) Similarly, they argue, "behavioral economics can play an important role ... by explaining how actual, real-world evidence that contradicts (or is unexplainable under) a neoclassical economic theory may nevertheless be insightful in understanding whether conduct is pro- or anti-competitive." (166) This line of argument suggests that neoclassical orthodoxy regards price theory as so robust that it should control in the event of an observed inconsistency with data.
The neoclassical account lends itself to no such proposition. The purpose of theory is to generate predictions with which to inform analysis in the absence of sufficient evidence. (167) When the relevant evidence is observable, though, facts supplant theory. Behavioral economics neither adds to nor detracts from this principle. Indeed, the benefits of an evidentiary approach to competition policy are so self-evident and compelling that it ought to control regardless of the theoretical framework that policymakers employ. (168)
Perhaps those who use neoclassical economics in antitrust analysis have grown complacent and fail to test rigorously the accuracy of their models' predictions as evidence becomes available. If so, the behavioral literature might serve as an apt reminder that theory is always subservient to fact. (169) Indeed, one behavioral antitrust piece concludes that "behavioral economics identifies enough holes in the simplistic rationality assumption to fortify the argument for more empirical work in antitrust policy." (170) But neoclassical assumptions--as opposed to predictions--have never been offered, or at least should never have been offered, as realistic. The deductive enterprise remains grounded in empirical validation. Nothing in the behavioral movement changes this fundamental point. Antitrust theory must remain tethered to actual market behavior, regardless of whether one's predisposition lies in rational choice theory or cognitive psychology.
Remarkably, behavioral antitrust scholars fail to muster real-world evidence of sustained departures from profit-maximization theory. (171) Rather, the claimed instances of firm-level irrationality are anecdotal and apparently fleeting. (172) Nor do behavioral antitrust scholars claim that the antitrust enforcement agencies are unable to revisit price-theory-informed predictions of no anticompetitive effect that prove to be mistaken. Especially in the merger context--where the government can challenge a consummated acquisition any time that it threatens to substantially lessen competition--regulators can supplement or replace a prediction with information acquired after the merger has been completed. (173) That the agencies have challenged completed mergers in the past and continue to do so today shows that they maintain a watchful eye. (174) Although ex post governmental challenges of previously cleared mergers are infrequent, the low number of challenges suggests that the merger guidelines, informed by neoclassical economics, work well. (175)
Notwithstanding these facts, behavioral antitrust scholars regard the process of merger clearance as emblematic of the neoclassical problem. One notable scholar maintains that agencies do not sufficiently scrutinize consummated mergers, and that legislation should be enacted to facilitate their doing so systematically. (176) This contention, however, begs the question by assuming that more rigorous ex post review of approved mergers would reveal that irrational behavior by the merged entity or its rivals was producing anticompetitive effects. But it would be very surprising if anticompetitive outcomes from approved mergers were the rule rather than the exception. One would not expect two expert agencies possessing many decades of experience in reviewing mergers to tie themselves dogmatically to abstract economic models in disregard of the documentary and testamentary evidence they routinely acquire. If the FTC and Justice Department, clinging to an uncritical commitment to neoclassical orthodoxy, habitually cleared anti-competitive mergers, someone would have noticed.
The same proponent of behavioral antitrust explains the relative absence of ex post merger review, in part, on the ground that:
The government may ... be hindered in legally challenging the anticompetitive conduct post-merger. For example, the antitrust laws do not prohibit a monopolist from raising prices. Thus, the merging parties may later exercise market power by reducing innovation, quality and services, and increasing prices, which may all go unchallenged. (177)
This is wrong as a matter of law. The government may bring an action under section 7 any time an acquisition threatens to ripen into the prohibited effect. (178) The behavioral antitrust proponent suggests that cognitive biases such as "belief perseverance" and "self-serving bias" may afflict agency decisionmaking, inducing them not to scrutinize deals that they had earlier blessed. (179) If those biases afflict the regulatory agencies, however, then why suppose that their decisions would be less biased ex post than they were ex ante even if they were compelled by statute to revisit cleared acquisitions? Might not confirmation bias lead them to overlook anticompetitive effects and reaffirm their prior decisions? More generally, if biases afflict agency decisionmaking, why trust the government to regulate markets more effectively than the markets regulate themselves? (180)
The behavioralist belief that horizontal merger guidelines reify a theory of rational choice unconnected to empirics is simply incorrect. Consistent with neoclassical economics, factual inquiry occupies center stage in modern merger review. (181) Of late, the major concern of agency-watchers has been the opposite of that voiced by behavioral scholars: that the agencies give excessive weight to unreliable evidence, particularly customer testimony, when that evidence runs counter to theory. (182) As with this testimony, the agencies sometimes confront the vexing problem of how best to use predictive theory and factual evidence when both are imperfect. Behavioral commentators offer no solution. At times, they seem to object to the use of theory in the face of any opposing evidence, even evidence of a qualitatively dubious nature. (183)
C. Behavioral Economics Is Anti-Theoretical
Even its foremost proponents concede that "[b]ehavioral economics is residual, as it describes phenomena that the profit-maximizer model does not explain." (184) This limited descriptive quality should consign behavioral antitrust to irrelevance as a matter of both analytics and doctrine. The only discrete role that behavioral antitrust can serve in aid of competition policy is the decidedly prosaic function of explaining phenomena after the fact. What antitrust law requires, however, is not subjective post hoc descriptions, but ex ante predictions. Rational choice theory answers this call; behavioral economics does not. Promoters of the behavioral movement are therefore wrong to argue that "reliance on ... rational-choice theories will recede in the coming years as they fail to explain actual market behavior. Here, the behavioral economics literature ... will advance competition policy in understanding such behavior." (185)
Not all behavioral antitrust scholars are blind to this fundamental critique. But they present no substantive response. One of the field's foremost defenders reacts simply by characterizing "[t]his criticism [as] ... a plea for ignorance." (186) But the idea that modern economic analysis unfolds ignorant of, and indifferent to, how its predictions track market outcomes is wrong. Of course, there is room for improving the precision of rational choice theory's predictions. But better predictions require a better theory, and the behavioral school has no theory to provide, let alone a superior one. "[H]av[ing] a better grasp of reality, and dealing with its hazards" (187) offers little to the antitrust policymaker charged with resolving a complex problem.
A prominent exponent of behavioral antitrust identifies the field as a "gap filler." (188) This, he asserts, is an important role because "[a]t times neoclassical economic theory cannot easily be reconciled with evidence of the parties' behavior, intent, motives, or post-merger plans." (189) But where direct evidence establishes the market effects of an impugned restraint, there is no role for a predictive theory, and hence no need for reconciliation save as a means by which to identify a superior predictive model.
D. Behavioral Antitrust Cannot Yield More Accurate Predictions
In contradiction to our conclusions in Part II, certain scholars nevertheless claim that behavioral economics can improve antitrust analysis by making more accurate predictions than the neoclassical model. (190) If the field deserves a meaningful role in antitrust, this claim is of inestimable importance because the ability to forecast market outcomes more precisely than neoclassical economics would require us to take the behavioralists' claims seriously. Unfortunately, behavioral antitrust scholars do no more than claim a superior ability to predict than the conventional approach--they neither prove this ability nor explain how it exists.
In principle, one could craft a predictive theory of commercial behavior by empirically identifying previously overlooked or underappreciated explanatory factors and incorporating them within a yet-to-be-discovered framework. Certain rudimentary building blocks are already in place, for the entire point of the larger behavioral movement is that "there are certain predictably irrational ways in which humans behave." (191) It is conceivable--though unlikely--that eventually behavioralists could create generalizable models of behavior incorporating these "predictably irrational ways" into a predictive model. As the last Part demonstrated, however, the cognitive biases on which the behavioral literature focuses do not lend themselves to systematic prediction of business behavior or to models of general application. At least for now, then, the behavioral literature plays no role in antitrust policy. As we have endeavored to explain, this consigns the field to irrelevance in the realm of competition law.
E. Behavioral Antitrust's Substantive Recommendations Are Unsound
In light of the preceding discussion, one might wonder whether behavioral antitrust has any point at all. Although vague aspersions and imprecision characterize behavioral theory, behavioralists make some remarkable normative assertions. Two prominent authors assert that "[t]he Supreme Court's economic thinking, as reflected in Trinko and Leegin, still lags" in light of the behavioral literature. (192) They suggest that the law should allow complaints alleging facts that make no economic sense under assumptions of rational profit-maximization to proceed to discovery. (193) They contend further that minimum resale price maintenance should still be illegal per se, notwithstanding the mountain of economic literature showing that the practice can promote efficiency. (194)
Both of these prescriptions are seriously ill-conceived. As to the first, behavioral antitrust scholars fail to establish a factual or theoretical premise on which to base so radical a conclusion. To justify exposing a firm to millions of dollars in discovery costs based on alleged behavior that is economically implausible; one would need convincing evidence that firms routinely depart from profit-maximization to harm competition at irrational cost to themselves. Sporadic instances of irrational predation would not justify retreating from Twombly. Cost-justified pleading rules accept a certain proportion of Type II errors (mistakenly letting anticompetitive behavior go unchallenged) in return for a sufficient reduction in the proportion of Type I errors (subjecting innocent firms to liability or to large discovery costs). (195) But the behavioralists lay no foundation at all for their quite radical policy conclusions beyond vague references to how firms and consumers may act differently based on any number of multidirectional, individual-specific biases that may or may not afflict them. As Part II demonstrated, there is no principled way to aggregate those biases into a firm policy conclusion.
A leading article criticizes the Horizontal Merger Guidelines for not being sufficiently attuned to behavioral economics. (196) It challenges the idea that the threat of new entry (or expansion by smaller incumbents with excess capacity) constrains the exercise of monopoly power in markets with low entry barriers, (197) that efficiencies drive merger activity, (198) that large purchasers limit the power of dominant sellers, (199) and that the government should employ deterrence theory to combat cartels. (200) The authors question the law's requirement of judgment for defendants in antitrust cases alleging economically irrational conduct. (201) And they criticize the enforcement agencies' practice of assuming that the goal of profit-maximization animates parties seeking to merge. (202)
But how is one to imagine a merger review process more attuned to behavioral economics? Would it confidently identify mergers whose (unstated) aim is something other than profit maximization? If so, how would it treat them? Should low entry barriers make no difference to the analysis? Or should they matter some of the time? And if so, when? There is no programmatic approach attached to the behavioralists' critique. If adopted, their views would either strip antitrust of all predictability, result in overbroad rules prohibiting many efficient business practices, or generate all-encompassing ex post reviews of almost all commercial behavior due to the absence of cost-saving rules meant to narrow antitrust scrutiny to situations in which restraints are likely to harm market outcomes.
F. The Behavioral Antitrust Literature Lacks Specificity
Imprecision and obscurity characterize the behavioral antitrust literature. One paper reviewing the (now defunct) UK Office of Fair Trading's study of the effect of price frames on consumer demand argues that purchasers' deviation from rational choice theory invites "one application of behavioral economics to antitrust," namely "to model consumer behavior and consider the effect of this behavior on competition." (203) How this nebulous aspiration might translate into actual policy, much less into a specific tenet of antitrust doctrine, is left to the reader's imagination.
The same piece confidently proclaims that "[t]hrough a more persuasive and complex theory of rationality, behavioral economics can provide a superior account of competition, can lead to more empirically based presumptions in antitrust's legal standards, and can result in more informed antitrust enforcement." (204) That is a worthy aspiration. But what would the superior standards look like? The authors do not say.
Behavioral scholars analyze a number of concrete examples, but their insights are no more illuminative. Several authors question the neoclassical assumption that low entry barriers neutralize market power. (205) An extended discussion of cognitive defects, ranging from optimism to pessimism biases, reveals the conflicting problems of excess and insufficient entry. (206) How might we know which effect controls, and in what circumstances? The elusive answer, we are informed, entails "[a] more fulsome entry analysis," comprising factors "apart from entry barriers." (207) Which factors? There is no satisfactory explanation. As we concluded in Part II, there is no principled way to organize these biases into a coherent theory predicting the net effect of entry.
The same problem afflicts behavioralists who question the assumption that mergers generate efficiencies. They conclude that "[m]ore empirical research is needed to determine to what extent close-call mergers generate significant efficiencies." (208) But behavioral economics hardly invented the idea of applied econometrics. Observed departures from the predictions of rational choice theory have long provided all the impetus necessary for empirical investigation. Calls for additional empirical work relating to the power of big buyers and the optimal deterrence of cartels reflect the same history: They originate not from behavioral insights, but from previous empirical work.
G. Behavioral Antitrust as Modest Adjustment?
In response to criticism that their suggestions lack a unifying theory, some behavioral scholars have offered a more modest role for their approach, claiming that it can "provide a mechanism for policymakers to consider whether and to what extent they should refine existing frameworks to account for nuances in human behavior." (209) Not all behavioral scholars endorse the notion of such a diminished role for behavioral antitrust, as confining it to such a small scope renders the movement peripheral at best. Nevertheless, might a vision of behavioral antitrust as incrementally improving the predictions of rational choice theory hold some promise? At first blush, one might imagine so, but two considerations lead us to answer that question in the negative.
First, if behavioral antitrust aspires merely to adjust the predictions of neoclassical economics to match empirical observations, then it amounts to standard practice, and has no standalone value. To take a famous example, the Supreme Court recognized that empirics trump economic theory in the Kodak case, refusing to hold that a seller in a competitive market for original equipment could not exercise monopoly power in an after-sales market because, under a version of rational choice theory assuming perfect access to information, buyers consider the price and quality of post-sales parts and service in making their initial purchase. (210) The Court decided that high information costs and price discrimination could enable sellers subject to competition in the original market to exercise pricing power in separate, post-sales markets. (211) The Court based its holding on the principle that "[ljegal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law," a principle unrelated to the teachings of behavioral economics. (212)
Second, to the extent that evidence of episodic departures from rationality can generate predictive theories of choice--a proposition at odds with the modest view of behavioral antitrust--improving rational choice theory can occur only if behavioral theory reliably identifies how to refine the pertinent models. Should actors be assumed to be less rational? In all circumstances? How much less? As Part II explained, behavioral economics is not up to that task. The myriad cognitive biases lying at the heart of behavioral antitrust not only lend themselves to almost any modification of conventional theory, but often cancel one another out. As a result, the suggested utility of behavioral antitrust depends entirely upon which biases are thought to explain the conduct in question. But because the movement lacks any method for determining the explanatory power of a particular bias, choosing between conflicting biases is either a random act or a political one.
H. Debunking the Literature: Conclusion
Our critique does not seek to denigrate the larger behavioral economics movement. Rather, it argues that, as applied to competition law, behavioral economics' contribution is simply descriptive. It embodies no theory, develops no predictive models, and therefore lacks practical value. (213)
Although it would be welcome, an underlying theory explaining why people sometimes make decisions contrary to their own welfare is not critical to useful policymaking. Empirical evidence of such conduct suffices. The contribution of the behavioral literature lies in its explanation of why individual decisionmaking can systemically depart from utility maximization. This contribution may significantly benefit certain areas, such as criminal law, in which lawmakers seek to shape individual choice. By understanding why people act as they do, government can adopt measures to improve citizens' decisionmaking prowess. In the realm of antitrust policy, however, this goal is largely absent.
IV. THE STAYING POWER OF NEOCLASSICAL ANTITRUST ECONOMICS
Part II demonstrated the internal contradictions and incoherence that accompany behavioral analysis of antitrust problems. Part III questioned the scholarly literature that champions the application of cognitive psychology to those issues in competition law and critiqued behavioral economics at a substantive level. This Article concludes with a brief defense of the dominant theoretical methodology for analyzing antitrust problems: neoclassical price theory. We begin by dispelling recurring mistruths about this branch of economics and explain the overriding advantage that price theory enjoys over the behavioral antitrust literature. Above all, approaching competition problems through the lens of constrained optimization by rational actors allows one to analyze coherently what would otherwise be overly complicated phenomena. It is neoclassical economics' ability to organize information that distinguishes it from the behavioral analysis criticized in this Article.
Behavioral antitrust defines itself in contradistinction to today's predominant methodology. For that reason, too, it is helpful to understand the precise nature of the neoclassical paradigm at which the behavioralists take aim. Sadly, rational choice theory is routinely misrepresented and frequently misunderstood. In particular, and contrary to some detractors' assertions, nothing in neoclassical economics compels a laissez faire enforcement policy.
A. Neoclassical Assumptions Are Not Meant to Be Realistic
Neoclassical price theory's assumptions are strikingly unrealistic. In its purest form, the conventional model assumes perfect, symmetric access to information and unqualified utility maximization by consumers. In the real world, though, information is scarce, processing available data is costly, and consumers often lack the ability accurately to perform cost-benefit analysis. Moreover, the expected-utility theory underlying neoclassical economics fails to capture precisely what many people maximize. Economic actors routinely assess their satisfaction by reference to outcomes other than consumption or profit, such as perceived distributional fairness, expectations, and altruism. Furthermore, people often care greatly about sunk costs, sticking to current investments when it would be better to abandon them. In addition, preferences are rarely monotonic across all levels of consumption because eventually buyers would rather have less of a given commodity than more.
It is unsurprising, then, that neoclassical models founded on profit and utility maximization sometimes get it wrong. Principal-agent problems can induce management to run a firm in its own interests, rather than to maximize shareholder value. Companies may expand the scale and scope of their businesses in lieu of short-run profit maximization. (214) By definition, nonprofit firms maximize something other than bottom-line results. Directors and executives display varying levels of competence, leading some businesses to miscalculate the costs and benefits associated with potential strategies, and causing them to adopt imperfect ones.
Neoclassical economics implicitly assumes that firms will follow incentives to maximize profit whether the profit opportunity is sizeable or modest. In practice, however, fierce competition can threaten the financial viability of underperforming companies, creating acute incentives to cut costs and improve quality. Imperfect competition, by contrast, creates a price umbrella that allows firms to remain in business even when they fail to minimize costs. Monopolists, contrary to conventional theory, may not engage in strict profit maximization due to a phenomenon known as "X-inefficiency." All of this is to say nothing, of course, about the well-documented tendency of consumers to succumb to bouts of irrationality, whether founded on imperfect information, excessive discount rates, or frail willpower. When consumers fail to respond to market conditions rationally, the self-corrective nature of the market is muted.
Why, then, should the law defer to the predictions of a theory that relies on such outlandish suppositions? The answer is that observed departures from rationality do not corrupt the utility of neoclassical theory. (215) Empirical research broadly supports the predictions of neoclassical models of industrial organization, and deviations from "rationality" of the kind referenced above do not appear to be systemic. (216) Ultimately, a for-profit business exists to make money, and a predictive theory founded on profit maximization at the very least reflects a core incentive of the commercial enterprise. Because most businesses are subject to the disciplinary pressures of competition, and because management has limited freedom to pursue goals that do violence to the company's bottom line, the desire to make a profit is a powerful explanatory factor in predicting firm behavior. This is not to say that market forces and shareholder accountability eliminate irrationality, only that they constrain them, making neoclassical economics an effective, if imperfect, predictor of market effects. In short, neoclassical economics has long played a commanding role in antitrust law for the simple reason that it works well.
B. Price Theory as an Organizing Principle
The mathematical precision of price-theoretic models can invite uncritical derision, not least because it suggests exact answers to intractable questions. Why assume complete, transitive, and strongly monotonic preferences, as well as rational utility maximization, when such suppositions are at odds with reality and ignore well-documented cognitive biases? The answer lies in the power of organization. An enormous amount of information accompanies almost any scrutinized restraint of trade. Without an organizing principle by which to make sense of that information, policymakers would be acting descriptively, rather than analytically.
Price theory, based in mathematics, applied to antitrust problems, yields specific policy prescriptions. As Judge Posner has explained, "[Mathematics can lend precision to theory, can uncover inconsistencies, can generate hypotheses, can enable concision and even promote intelligibility, and can sort out complex interactions, while statistical analysis can organize and interpret voluminous data." (217) The behavioral antitrust movement lacks that quality.
C. NEOCLASSICAL ANTITRUST IS NOT SYNONYMOUS WITH THE CHICAGO SCHOOL
We conclude by laying to rest a favorite criticism of neoclassical antitrust theory, namely the idea that the model is synonymous with a hands-off, laissez faire policy founded on the assumption that markets are always and everywhere efficient. This misconception arose in part from the political leanings of some prominent members of the Chicago School, who elaborated an influential policy founded on market self-correction. Ironically, such a non-interventionist approach follows from neoclassical analysis only if one draws the conclusion that abstract models of perfect competition approximate real-world markets.
In fact, neoclassical economic theory more readily lends itself to a broad, interventionist mandate, given that the industrial conditions underlying its perfect-competition model never exist in the real world. As Judge Posner has explained:
[B]ecause conditions in the real world never satisfy [neoclassical economic] theory's specifications for an efficient allocation of resources (price equal to marginal cost, no externalities, no second-best problems, markets complete, and so forth), neoclassical economic theory becomes a recipe for public interventions.... With every deviation from perfect competition labeled 'market failure' and such deviations everywhere, it is hard to retain a robust faith in unregulated markets. (218)
The misunderstanding arises because of the strong reliance that the economically conservative Chicago School places on neoclassical price theory. In this regard, it is important to distinguish a theoretical tool from the political views of those who employ it. Although modern economic theory and econometrics yield powerful insights into the market effects of complex business phenomena, much of the information necessary to resolve certain antitrust questions remains unknown and unavailable. Political assumptions regarding the restorative power of markets and the impact of legal rules on firms' investment decisions inevitably accompany one's application of theory in situations of imperfect information.
In arguing that "behavioral economists should let rational choice theory's remaining embers dissipate," (219) those promoting a behavioral vision for competition policy have, at best, wildly overstated their case. The rational-actor model, which has informed the development of U.S. antitrust law since the 1970s, possesses four great benefits. First, its projections are well delineated and specific. Second, empirical research broadly supports the extrapolations of price and game theories within the field of industrial organization, which is essential because the utility of antitrust analysis depends on its predictive accuracy. Third, neoclassical economic models are generalizable and thus susceptible of universal application. Fourth, neoclassical models can and often do incorporate imperfect information, bounded rationality, and altruism, enabling them to offer valuable guidance in market settings in which the assumptions of perfect rationality, willpower, and self-interest are likely to result in falsely specified models and hence in inaccurate predictions. Combined, these features explain why price theory provides a rigorous and workable foundation for antitrust policy.
By contrast, behavioral antitrust lacks a theoretical foundation, and provides no basis for identifying optimal competition rules. Although it can aspire to perform the ancillary task of "improving" the predictions of conventional antitrust economics, behavioral antitrust fails to accomplish even this. Its empirical investigations, which occupy the core of its methodology, have yet to generate any hypotheses, let alone a comprehensive theory of how competitive markets work. It amounts to little more than a patchwork of observed anomalies incapable of assisting in ex ante prediction. Whereas neoclassical economics and game theory produce rigorously defined predictions, which find broad (though qualified) empirical support, behavioral antitrust offers no model against which to measure the workings of actual and future markets, no testable conclusions, and no guidelines for advising clients, enforcing the laws, or deciding hard cases.
No economic model useful for antitrust analysis could incorporate the full array of influences on firm behavior--influences that may vary dramatically from company to company, market to market, and time to time. Rational choice theory focuses on what is likely to be the overriding consideration for most firms in most markets: profit. That focus enables it to model and predict future behavior in a way that antitrust analysis can readily and effectively deploy. The behavioral antitrust movement offers nothing comparable.
The economic enterprise is one of continual refinement and improvement. The recurring question for policymakers is whether behavioral antitrust can advance the state of the art in a meaningful way. The answer, at present, is "no."
(1.) See United States v. Syufy Enters., 903 F.2d 659, 666-69 (9th Cir. 1990).
(2.) See Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines [section] 5.3 (2010), available at http://www.justice.gov/atr/public/guidelines/hmg2010.pdf, [http://perma.cc/7SKR-GZHZ].
(3.) See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
(4.) See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877,896-97 (2007).
(5.) Bailey v. Allgas, Inc., 284 F.3d 1237,1250 (11th Cir. 2002); Nobody in Particular Presents, Inc. v. Clear Channel Commc'ns Inc., 311 F. Supp. 2d 1048, 1098-99 (D. Colo. 2004); see also United States v. Aluminum Co. of Am., 148 F.2d 416, 424 (2d Cir. 1945).
(6.) See generally Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985); see also Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 409 (2004).
(7.) See J. Thomas Rosch, Comm'r, Fed. Trade Comm'n, Remarks at the New York Bar Association Annual Dinner: Implications of the Financial Meltdown for the FTC 2-5 (Jan. 29, 2009), available at http://ftc.gov/speeches/rosch/ 090129financialcrisisnybarspeech.pdf, [http://perma.cc/DCZ7-2L3S]; see also generally Maurice E. Stucke, Reconsidering Antitrust's Goals, 53 B.C. L. REV. 551 (2012) [hereinafter Reconsidering Goals]; Maurice E. Stucke, Behavioral Economists at the Gate: Antitrust in the Twenty-First Century, 38 LOY. U. CHI. L.J. 513 (2007) [hereinafter Twenty-First Century],
(8.) See generally, e.g., Stucke, Reconsidering Goals, supra note 7.
(9.) See Amanda P. Reeves & Maurice E. Stucke, Behavioral Antitrust, 86 IND. L.J. 1527, 1570-71 (2011).
(10.) See id.
(11.) Id. at 1543 ("The purpose of behavioral economics is to augment neoclassical economic theory by providing more realistic assumptions of human behavior.").
(12.) See, e.g., Roger Van den Bergh, Behavioral Antitrust: Not Ready for the Main Stage, 9 J. COMPETITION L. & ECON. 203, 203 (2013) (concluding that "[b]ehavioral antitrust is a side act and not (yet) ready for the main stage").
(13.) Part III critiques the behavioral antitrust literature.
(14.) E.g., Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law & Economics, 88 CALIF. L. REV. 1051, 1055 (2000) ("The use of rational choice theory enabled the law-and-economics movement, in its early days, to achieve significant advances in understanding the interaction between legal rules and society. But now ... the rationality assumption severely limits its continued scholarly development.").
(15.) See id. at 1065 (stating that "thick" versions of rational choice theory integrate the assumption that actors will seek to maximize their self-interest, which can lead to behavioral predictions that are more easily falsifiable by empirical evidence).
(16.) See id. at 1070.
(17.) See Reeves & Stucke, supra note 9, at 1571 (urging competitive authorities to partake in more empirical research into behavioral psychology and economics to better understand "the competitive dynamics of particular markets and how legal and informal norms interact to influence individual behavior and competition generally").
(18.) See id. at 1532-33 ("[B]ounded rationality acknowledges the distinction between reasoning versus intuition. Consumers are not perfectly objective and rational Bayesians, who readily update prior factual beliefs whenever appraised of reliable information."). Reeves and Stucke posit that individuals give undue weight to evidence that supports their beliefs, and discount evidence that undercuts their beliefs, rather than continually updating their prior factual beliefs when relevant and reliable empirical data become available, as a rational agent would. Id. at 1533.
(19.) Id. at 1535 ("Bounded willpower ... refers to when we knowingly engage in actions known to be detrimental and therefore act contrary to our long-term interests."). Reeves and Stucke cite neurological research that suggests that "in situations that involve a short-term gain even at a long-term cost, we may not engage in the cost-benefit analysis expected under rational choice theory." Id.
(20.) See id. at 1536-37 (stating that people care about treating others fairly, sometimes at their own expense, or without the thought or expectation that their actions will be repaid). Reeves and Stucke also state that religious norms can influence "individuals' propensities for fairness and willingness to punish unfairness," which differs from the rational actor assumption that people seek to maximize their wealth and "generally do not care about other social goals to the extent they conflict with personal wealth maximization." Id. at 1536-37.
(21.) See supra notes 7, 9.
(22.) See Daniel Kahneman, Thinking, Fast and Slow 109-95 (2011).
(23.) See Allan L. Shampine, The Role of Behavioral Economics in Antitrust Analysis, ANTITRUST, Spring 2013, at 65, 68 ("The endowment effect is a consumer's tendency to demand greater compensation to forfeit something than to acquire it. Here, consumers react more strongly to surcharges than to discounts because a surcharge is perceived as taking something away from the consumer.").
(24.) See Reeves & Stucke, supra note 9, at 1571.
(25.) Stucke, Reconsidering Goals, supra note 7, at 556 ("Adopting the Chicago School's simplifying assumptions of self-correcting markets, ... some courts and enforcers sacrificed important political, social, and moral values to promote certain economic beliefs.").
(26.) See Joshua D. Wright & Judd E. Stone II, Misbehavioral Economics: The Case Against Behavioral Antitrust, 33 CARDOZOL. REV. 1517, 1523 (2012) ("[F]undamental antitrust tools, such as market definition, would be of little use without the assumption of rational consumer substitution in response to price changes.").
(27.) See Shampine, supra note 23, at 65 (explaining how rational firms are able to exploit consumers' "quirks" in changing their demand to increase prices).
(28.) For a more in-depth discussion by the authors concerning Type I errors, see Alan Devlin & Michael Jacobs, Antitrust Error, 52 WM. & MARY L. REV. 75, 94-97 (2010) (explaining error analysis in antitrust).
(29.) See Jonathan B. Baker, Economics and Politics: Perspectives on the Goals and Future of Antitrust, 81 FORDHAM L. Rev. 2175, 2183 (2013) (explaining that the laissez-faire approach relies on "private enterprise to organize production and trade with little or no supervision to ensure that firms compete").
(30.) See James C. Cooper & William E. Kovacic, Behavioral Economics and Its Meaning for Antitrust Agency Decision Making, 8 J.L. ECON. & POL'Y 779, 800 (2012) ("Much work in the nascent field of behavioral antitrust prescribes expanded use of competition law to correct consumer harm that arises from biased firm behavior.").
(31.) See Reeves & Stucke, supra note 9, at 1570 ("We believe that behavioral economics identifies enough holes in the simplistic rationality assumption to fortify the argument for more empirical work in antitrust policy."). Reeves and Stucke advocate for more empirical research into how competition works in particular markets in particular communities at particular time periods, and the interplay among private institutions, government institutions, and informal social, ethical, and moral norms. Id. at 1571.
(32.) Wright & Stone, supra note 26, at 1527 ("Economic methodology has long required that competing models succeed or fail based on their predictive power." (citing Milton Friedman, The Methodology of Positive Economics, in ESSAYS IN POSITIVE ECONOMICS 3, 3-16 (1953) and George J. Stigler, Nobel Memorial Lecture: The Process and Progress of Economics (Dec. 8, 1982), in NOBEL LECTURES IN ECONOMIC SCIENCES: 1981-1990, 57, 57 (Karl-Goran Maler ed., 1992)).
(33.) See, e.g., Roger D. Blair & David L. Kaserman, Antitrust Economics 232-34 (Oxford Univ. Press, 2d ed. 2009) (explaining different uses of game theory in antitrust analysis). Neoclassical price theory assumes "rationality," such that actors choose to maximize their preferences subject only to their budgetary or other constraints, such as imperfect information.
(34.) See, e.g., Reeves & Stucke, supra note 9, at 1571.
(35.) See, e.g., id. at 1532-35.
(37.) See Wright & Stone, supra note 26, at 1530 ("Behavioral economics ... attempts to address irrational human behavior in light of limited cognitive capacity and inherent cognitive failings.").
(38.) See generally ADVANCES IN BEHAVIORAL ECONOMICS (Colin F. Camerer et al. eds., 2004) (collecting some of the most influential articles in behavioral economics).
(39.) In fact, on average, people weigh losses about twice as heavily as they do gains. KAHNEMAN, supra note 22, at 284 (explaining that the "'loss aversion ratio' has been estimated in several experiments and is usually in the range of 1.5 to 2.5").
(40.) Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 SCI. 453, 453 (1981).
(45.) See Ofer Tur-Sinai, The Endowment Effect in IP Transactions: The Case Against Debiasing, 18 MICH. TELECOMM. & TECH. L. Rev. 117, 119 n.5 (2011) (describing the endowment effect as "a manifestation of Toss aversion"'(citing Daniel Kahneman et at, Experimental Tests of the Endowment Effect and the Coase Theorem, 98 J. POL. ECON. 1325, 1326 (1990))).
(46.) Id. at 121-22 (citations omitted).
(47.) See KAHNEMAN, supra note 22, at 298-99.
(48.) See Joshua D. Wright & Judd E. Stone II, Still Rare Like a Unicorn? The Case of Behavioral Predatory Pricing, 8 J.L. ECON. & POL'Y 859, 864 (2012) ("[individuals accurately assess potential risks in the abstract but discount these risks significantly when applying them to their own situations," indicating that individuals generally think that bad events happen to others, but not themselves.).
(49.) See Joshua D. Wright & Douglas H. Ginsburg, Behavioral Law and Economics: Its Origins, Fatal Flaws, and Implications for Liberty, 106 Nw. U. L. REV. 1033, 1043 (2012) ("[H]yperbolic discounting entails placing an extremely high weight upon the present, after which future values decline exponentially."); see also Wright & Stone, supra note 48, at 864 (indicating that individuals have "time-inconsistent preferences" and that they irrationally weight the value of present benefits over future ones).
(50.) See Amos Tversky & Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 SCI. 1124, 1128 (1974).
(53.) For an in-depth discussion of prospect theory, see Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 ECONOMETRICA 263, 286 (1979).
(54.) See Wright & Ginsburg, supra note 49, at 1042 ("Prospect theory posits that decisionmakers evaluate and maximize expected outcomes not in isolation but rather relative to an initial reference point.").
(55.) See, e.g., Daniel Kahneman et al., Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. ECON. PERSP. 193, 197-98 (1991) (explaining that one aspect of loss aversion is that individuals generally have a tendency to remain at the status quo because "the disadvantages of leaving it loom larger than advantages"); Kahneman & Tversky, Prospect Theory, supra note 53, at 286 (acknowledging that most measures of gains and losses are based on deviations from the status quo, or "one's current assets").
(56.) See Kahneman & Tversky, supra note 53, at 286 ("[T]here are situations in which gains and losses are coded relative to an expectation or aspiration level that differs from the status quo.").
(57.) See Reeves & Stucke, supra note 9, at 1536-37 (illustrating the concept that individuals care about treating others fairly by stating that people base their choices on an established reference point of "fairness").
(58.) Stucke, Twenty-First Century, supra note 7, at 513, 516.
(59.) See Elizabeth M. Bailey, Behavioral Economics: Implications for Antitrust Practitioners, ANTITRUST SOURCE, June 2010, at 1, 6 (2010) ("[T]here is little research that provides evidence suggesting that firms deviate from profit-maximizing behavior in a systematic or persistent way.").
(60.) See Max Huffman, Marrying Neo-Chicago with Behavioral Antitrust, 78 ANTITRUST L.J. 105, 106 (2012) ("Until very recently, all of the writing advocating Behavioral Antitrust favored increased antitrust enforcement.").
(61.) See supra, Part I.B, examining cognitive biases identified by behavioral antitrust literature.
(62.) For more discussion on the integration of behavioral psychology in antitrust analysis, see generally Wright & Stone, supra note 26.
(63.) See Richard A. Posner, Antitrust Law 148-49 (2d ed. 2001) (emphasizing the importance of price elasticity in antitrust analysis and noting that a sufficiently large price increase "will make poor substitutes at the competitive price look good to consumers, will induce producers of other products to make even costly adaptations in their production processes in order to produce the monopolized product, and may even induce the creation of entirely new firms to produce it").
(64.) See id. at 64.
(65.) The Supreme Court has declined to intervene in cases where corporations acquire monopoly power through non-exclusionary means because of anticipated market self-correction. See Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) (stating that the ability of a firm to charge monopolistic prices, at least in the short run, "is an important element of the free-market system ... [and] induces risk taking that produces innovation and economic growth").
(66.) See POSNER, supra note 63, at 148.
(67.) See id.
(68.) In such a setting, there would be no normative case for an antitrust regime, which rests on the premise that markets unfettered by artificial restrictions on competition tend toward efficiency. Government regulation or control would have to follow to avoid the problem of monopoly power.
(69.) The Herfindahl-Hirschman Index is calculated by "determining the market share of each participant, squaring each firm's market percentage, and adding the resulting figures together." Neil B. Cohen & Charles A. Sullivan, The Herfindahl-Hirschman Index and the New Antitrust Merger Guidelines: Concentrating on Concentration, 62 TEX. L. REV. 453, 476 (1983).
(70.) In 2010, the Department of Justice and the Federal Trade Commission updated their Horizontal Merger Guidelines, which classify markets into three types based on their HHI: an HHI below 1500 is considered "[u]nconcentrated"; an HHI between 1500 and 2500 is considered "[m]oderately [concentrated"; and an HHI above 2500 is considered "[h]ighly [c]oncentrated." Dep't OF JUSTICE & FED. TRADE COMM'N, supra note 2, at [section] 5.3.
(71.) Id. at [section] 5.1.
(72.) See Wright & Stone, supra note 26, at 1523 (highlighting the importance of the substitution effect in defining markets, stating that "fundamental antitrust tools, such as market definition, would be of little use without the assumption of rational consumer substitution in response to price changes").
(73.) See Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 389, 407 (2004).
(75.) For a deeper discussion of the status quo bias, see generally Robert L. Scharff & Francesco Parisi, The Role of Status Quo Bias and Bayesian Learning in the Creation of New Legal Rights, 3 J.L. ECON. & POL'Y 25 (2006).
(76.) See Cooper & Kovacic, supra note 30, at 787 (explaining that a combination of "cognitive shortcomings create[s] inertia to maintain a current course of action rather than to take new action that would increase expected utility").
(77.) See, e.g., Avishalom Tor & William J. Rinner, Behavioral Antitrust: A New Approach to the Rule of Reason After Leegin, 2011 U. ILL. L. Rev. 805, 821.
(78.) See Robert A. Prentice, Moral Equilibrium: Stock Brokers and the Limits of Disclosure, 2011 WIS. L. Rev. 1059, 1093 (applying to stock broker Jonathan Haidt's argument that post-action "moral reasoning" is an attempt to create plausible rationalizations for previously made decisions while conceding that "everyone else" also engages in these rationalizations of previously reached conclusions (citing Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 PSYCHOL. REV. 814, 814 (2001))).
(79.) See Wright & Stone, supra note 26, at 1530-31 ("The premise behind a framing effect is that an individual presented with an identical set of options surrounded by different environs will make different choices.").
(80.) See Wright & Ginsburg, supra note 49, at 1043 ("[H]yperbolic discounting generates time-inconsistent preferences.").
(81.) "[P]essimism bias occurs when an individual overestimates the occurrence of adverse events." Id. at 1044 n.46.
(82.) Lawrence A. Cunningham, Behavioral Finance and Investor Governance, 59 WASH. & Lee L. Rev. 767, 784 (2002) (defining conservatism bias as "the slow updating of beliefs in the face of new information").
(83.) Elizabeth Harmer Dionne, Pornography, Morality, and Harm: Why Miller Should Survive Lawrence, 15 GEO. MASON L. REV. 611, 627 (2008) (explaining that the Semmelweis Reflex is a phenomenon where one "rejects new information without further thought, inspection, or experimentation").
(84.) See Wright & Stone, supra note 48, at 863 (explaining that loss aversion occurs when people "assign losses greater value than otherwise equally sized gains"); see also Kahneman et al., supra note 55, at 199-203 (explaining situations when loss aversion leads to discrepancies between buying and selling prices).
(85.) See David S. Evans & Richard Schmalensee, A Guide to the Antitrust Economics of Networks, ANTITRUST, Spring 1996, at 36, 38 (explaining that a producer may sell a product below its marginal cost in order to attract as many customers as possible, which would increase the value of its product, making it more attractive to customers and leading other sellers to price their products at below marginal cost, thus generating the "bandwagon effect").
(86.) See Tur-Sinai, supra note 45, at 148.
(87.) See John R. Nofsinger & Abhishek Varma, Availability, recency, and sophistication in the repurchasing behavior of retail investors, 37 J. BANKING & Fin. 2572, 2572 (2013) (positing that recency bias is evident in stock purchases when "[investors are attracted to stocks with recent attention-getting news and events even though they find that 'all that glitters' does not produce positive abnormal returns").
(88.) See Reeves & Stucke, supra note 9, at 1541 ("[B]ehavioral economics is relevant in understanding consumer decision making and how firms compete to help or exploit  bounded rational consumers.").
(89.) Some scholars concede that behavioral economics does not provide a unifying theory of human or firm behavior but posit that "[t]he purpose of behavioral economics is to augment neoclassical economic theory by providing more realistic assumptions of human behavior." Id. at 1543. As we explain below, however, it is not possible to "augment" conventional price theory with behavioral antitrust in the absence of a generalizable theory. To the extent behavioralists claim that empirics should dominate theory, that observation is redundant, for the conventional account has long accepted that principle.
(90.) See supra Part I.B.
(91.) See Avishalom Tor, The Fable of Entry: Bounded Rationality, Market Discipline, and Legal Policy, 101 MICH. L. Rev. 482, 553 (2002).
(92.) See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 591 n.15 (1986) (commenting that entry into the market for television sets was not especially difficult, and that "without barriers to entry it would presumably be impossible to maintain supracompetitive prices for an extended time"); see also Frank H. Easterbrook, The Limits of Antitrust, 63 TEX. L. Rev. 1, 26-27 (1984) (arguing that Japanese manufacturers selling TV sets at less than cost in order to drive U.S. firms out of business could not possibly produce profits by harming competition because to recoup those losses the firms would have to sell their television sets at a high price, which would open the door to new competition).
(93.) See Tor, supra note 91, at 492.
(94.) For a discussion of barriers to entry, see JULIAN O. VON KALINOWSKI ET. AL., 1 Antitrust Laws and Trade Regulation, [section] 4.05(5)(b) (2d ed. 2013).
(95.) Joe S. Bain, Barriers to New Competition: Their Character and Consequences in Manufacturing Industries 3 (1956).
(96.) George J. Stigler, The Organization of Industry 67 (1968).
(97.) See generally, e.g., Richard J. Gilbert, The Role of Potential Competition in Industrial Organization, J. ECON. PERSP., Summer 1989, at 107.
(98.) See Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 COGNITIVE PSYCHOL. 207, 208 (1973) ("A person is said to employ the availability heuristic whenever he estimates frequency or probability by the ease with which instances or associations could be brought to mind.").
(99.) See Wright & Stone, supra note 48, at 864 ("Optimism bias speculates that individuals accurately assess potential risks in the abstract but discount these risks significantly when applying them to their own situations.").
(100.) See Tversky & Kahneman, supra note 50, at 1128.
(101.) See Evans & Schmalensee, supra note 85, at 38 (explaining the bandwagon effect).
(102.) See Wright & Stone, supra note 26, at 1530-31.
(103.) See Reeves & Stucke, supra note 9, at 1535 (defining hindsight bias as "our tendency to increase the likelihood of an event's occurrence after learning that it actually did occur").
(104.) See Justin Pidot, Deconstructing Disaster, 2013 BYU L. REV. 213, 237-38 ("The gambler's fallacy causes people to believe that an unlikely event that has recently occurred is less likely to recur in the near future.").
(105.) See Prentice, supra note 78, at 1093.
(106.) See Ellen A. Waldman, Disputing over Embryos: Of Contracts and Consents, 32 ARIZ. St. L.J. 897, 922-24 (2000) (describing how selective perception can be triggered by stress or "information overload" causing individuals to "emphasize information that supports preconceived hypotheses while filtering out or selectively reinterpreting dissonant data" (internal quotation marks omitted)).
(107.) See Korobkin & Ulen, supra note 14, at 1086 ("The 'representativeness heuristic' refers to the tendency of actors to ignore base rates and overestimate the correlation between what something appears to be and what something actually is.").
(108.) See Wright & Ginsburg, supra note 49, at 1044 n.46 (explaining pessimism bias).
(109.) See Tversky & Kahneman, supra note 98, at 208.
(110.) See Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 YALE L.J. 61, 62-63 (2002) (proposing the idea of "probability neglect," in which individuals "tend to focus on the adverse outcome, not on its likelihood [so] they are not closely attuned to the probability that harm will occur" (emphasis in original)).
(111.) Cf. Evans & Schmalensee, supra note 85, at 38 (describing a situation in which firms see other firms taking action and follow suit).
(112.) See Kahneman et al., supra note 55, at 197-98; Scharff & Parisi, supra note 75, at 26.
(113.) See Tversky & Kahneman, supra note 98, at 208.
(114.) See Wright & Ginsburg, supra note 49, at 1043.
(115.) For further discussion on the role of ambiguity in decisionmaking, see Tor, supra note 91, at 524-31
(116.) See Wright & Stone, supra note 48, at 862-63.
(117.) The Supreme Court has defined market power as "the ability of a single seller to raise price and restrict output." Eastman Kodak Co. v. Image Technical Servs. Inc., 504 U.S. 451, 464 (1992) (citation omitted) (internal quotation marks omitted).
(118.) See Dennis W. Carlton & Jeffrey M. Perloff, Modern Industrial Organization 352-64 (4th ed. 2005).
(120.) Joseph Kattan & William R. Vigdor, Game Theory and the Analysis of Collusion in Conspiracy and Merger Cases, 5 GEO. MASON L. Rev. 441, 444 (1997) ("Game theory is the study of market performance when firms appreciate that their behavior influences the conduct of their competitors and of the ultimate market outcome.").
(121.) See John B. Kirkwood & Richard O. Zerbe, Jr., The Path to Profitability: Reinvigorating the Neglected Phase of Merger Analysis, 17 Geo. MASON L. REV. 39,95-96 (2009).
(122.) See Shampine, supra note 23, at 68.
(123.) See Tversky & Kahneman, supra note 98, at 208.
(124.) See Wright & Stone, supra note 48, at 864.
(125.) See Kahneman et al., supra note 55, at 197-98; Scharff & Parisi, supra note 75, at 26.
(126.) Carlton & PERLOFF, supra note 118, at 352-57; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 577-78 (1986) (describing alleged scheme of predatory pricing).
(127.) Carlton & Perloff, supra note 118, at 357-59.
(128.) See Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222-24 (1993).
(129.) See Matsushita, 475 U.S. at 591 n.15 ("[W]ithout barriers to entry it would presumably be impossible to maintain supracompetitive prices for an extended time.").
(130.) See Marina Lao, Networks, Access, and "Essential Facilities": From Terminal Railroad to Microsoft, 62 SMU L. REV. 557, 567 (2009) (explaining that natural monopolies make the strongest case for compulsory access due to "high fixed costs and low marginal costs making duplication of the facility infeasible, inefficient or socially wasteful").
(131.) See Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 409 (2004); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 608-09 (1985); see also Daniel E. Troy, Note, Unclogging the Bottleneck: A New Essential Facility Doctrine, 83 COLUM. L. REV. 441, 460-62 (1983) (explaining why courts should only impose a duty to deal in certain situations, and not generally).
(132.) See Troy, supra note 131, at 462.
(133.) See, e.g., 111. Tool Works, Inc. v. Indp. Ink, Inc., 547 U.S. 28, 31-38 (2006).
(134.) See, e.g., Alan Devlin, A Neo-Chicago Perspective on the Law of Product Tying, 44 AM. Bus. L.J. 521, 550-51 (2007) (explaining efficiencies that arise from product tying in the form of transaction cost efficiency, complementary effects, and price discrimination).
(135.) See id. at 547-48.
(136.) See DEP'T OF JUSTICE, COMPETITION AND MONOPOLY: SINGLE-FIRM CONDUCT Under Section 2 of the Sherman Act, 82-83 (2008), available at http://www.usdoj.gov/atr/public/reports/236681.pdf, [http://perma.cc/Z895-XCJX].
(137.) Double markup occurs when a firm already has monopoly power and separately marks its product up to maximize its own profit. See Jordan Barry, When
Second Comes First: Correcting Patent's Poor Secondary Incentives Through an Optional Patent Purchase System, 2007 WIS. L. REV. 585, 601-02.
(138.) See Einer Elhauge, Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, 123 HARV. L. REV. 397, 402 (2009).
(139.) See id. at 413-16.
(140.) See Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2,17-18 (1984); John E. Lopatka & William H. Page, Antitrust on Internet Time: Microsoft and the Law and Economics of Exclusion, 7 Sup. Ct. Econ. Rev. 157, 163 (1999).
(141.) See Elhauge, supra note 138, at 477-78 (arguing for a quasi-per se rule that would "condemn ties based on tying market power absent offsetting efficiencies" but would "not apply to products that have a fixed ratio and lack separate utility"); Christopher R. Leslie, Cutting Through Tying Theory with Occam's Razor: A Simple Explanation of Tying Arrangements, 78 TUL. L. REV. 727, 821-22 (2004) ("Some tying arrangements have potentially procompetitive benefits, for example those tying arrangements that a seller uses to break into a monopolized market.").
(142.) See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 46971 (1992).
(143.) See Maurice E. Stucke, Reconsidering Competition, 81 MISS. L.J. 107, 109-10 (2011) (arguing the main problem with the Chicago, post-Chicago, and Harvard Schools of antitrust thought is that they "assume a marketplace of rational profit-maximizing firms and consumers with perfect willpower").
(144.) See Rosch, supra note 7, at 5 ("[I]n the real world--as opposed to the worlds of political and economic theory--markets are not perfect;... imperfect markets do not always correct themselves; and ... business people do not always behave rationally.").
(145.) See Stucke, Reconsidering Goals, supra note 7, at 593-95 (identifying what he believes to be six "paradoxes" that have emerged from the laissez faire beliefs that have emerged following the financial crisis and the Great Recession).
(146.) See Thomas J. Horton, The Coming Extinction of Homo Economicus and the Eclipse of the Chicago School of Antitrust: Applying Evolutionary Biology to Structural and Behavioral Antitrust Analyses, 42 LOY. U. CHI. L.J. 469, 508 (2011) ("[I]t is naive (and a denial of history) to assume that businesspersons will not sometimes aggressively resort to cutthroat and irrational predatory tactics to destroy their competitors and the competitive process itself.").
(147.) See Maurice E. Stucke, Better Competition Advocacy, 82 St. John's L. Rev. 951, 1030-31 (2008) (explaining how different antitrust policies could promote competition).
(148.) See Cooper & Kovacic, supra note 30, at 780; Korobkin & Ulen, supra note 14, at 1055-56; Reeves & Stucke, supra note 9, at 1528; Shampine, supra note 23, at 65; Stucke, Reconsidering Goals, supra note 7, at 556-57.
(149.) Horton, supra note 146, at 471.
(150.) Reeves & Stucke, supra note 9, at 1531.
(151.) Amanda P. Reeves, Behavioral Antitrust: Unanswered Questions on the Horizon, ANTITRUST SOURCE, June 2010, at 1, www.americanbar.org/content/ dam/aba/publishing/antitrust_source/Jun10_FullSource6_24.authchckdam.pdf, [http://permra.cc/TU4G-B827].
(153.) Rosch, supra note 7, at 2. In doing so, Rosch draws uncritical reference to the financial crisis, the causes and effects of which have no obvious bearing on the propriety of microeconomic analysis of competition phenomena outside the financial sector. For an explanation of why the financial crisis sheds little light on the neoclassical foundation of antitrust law, see Alan Devlin, Antitrust in an Era of Market Failure, 33 HARV. J.L. & PUB. POL'Y 557, 559-60 (2010).
(154.) Judge Richard Posner responds to the idea that "new institutional economics ought somehow to displace the rest of microeconomics" by stating that it is a view that is "bound up with a dislike of abstraction, a sense that it falsifies reality." He suggests that these abstractions are useful because, even though they do not provide "complete or even adequate description[s]," the correlations identified by utilizing the assumptions of perfectly competitive industries, perfectly informed consumers, and instantaneous price reactions may "well have causal significance and thus enable prediction and control." See Richard A. POSNER, Overcoming Law 430 (1995).
(155.) See id. at 428.
(156.) See id.
(157.) See id. at 430 ("[A] theory is not necessarily false just because the assumptions on which it rests are unrealistic.").
(158.) Reeves & Stucke, supra note 9, at 1542-43.
(159.) Id. at 1543.
(160.) See Maurice E. Stucke, Is Intent Relevant?, 8 J.L. ECON. & POL'Y 801, 819 (2012). ("[T]he problem with a vague preference, such as utility maximization, is that the economic theory, while easily explaining behavior retrospectively, cannot predict behavior.").
(161.) Reeves & Stucke, supra note 9, at 1570.
(162.) See Joshua D. Wright, Abandoning Antitrust's Chicago Obsession: The Case for Evidence-Based Antitrust, 78 ANTITRUST L.J. 241, 246-47 (2012).
(163.) Stucke, Twenty-First Century, supra note 7, at 532.
(164.) A leading promoter of behavioral economics in the antitrust setting maintains otherwise, contending that "the Chicago School's theories were never conceived inductively through rigorous empirical testing" and relying for that proposition on a quotation of (then-Professor) Posner in 1979. Id. at 534. Whatever the accuracy of that assertion may have been in the late 1970s, it is not true of recent times. See, e.g., Wright, supra note 162, at 246-47.
(165.) Reeves & Stucke, supra note 9, at 1543.
(166.) Id. at 1545.
(167.) See POSNER, supra note 154, at 430.
(168.) See Eastman Kodak Co. v. Image Technical Servs. Inc., 504 U.S. 451, 466-67 (1992) ("Legal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavored in antitrust law."); Huffman, supra note 60, at 107 ("If devotion to empirical study is seen as a fundamental part of Neo-Chicago, it is consistent with, rather than hostile to, Behavioral Antitrust.").
(169.) See, e.g., Stucke, Twenty-First Century, supra note 7, at 516 (calling on the antitrust agencies to "test empirically the predictive value of their Horizontal Merger Guidelines ... to assess ex ante whether a potential merger may substantially lessen competition or tend to create a monopoly").
(170.) Reeves & Stucke, supra note 9, at 1570.
(171.) See Bailey, supra note 59, at 6.
(172.) An economist surveying the literature notes that "anecdotal evidence on deviations appear to be related to non-systematic mistakes or to a firm targeting an interim goal related to revenues or market share that evolves over time to profit maximization" and that the "standard frameworks ..., absent evidence to the contrary, appear to describe consumer and firm behavior well." Id. at 6-7
(173.) See United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586,597 (1957).
(174.) See, e.g., Scott A. Sher, Closed but Not Forgotten: Government Review of Consummated Mergers Under Section 7 of the Clayton Act, 45 SANTA CLARA L. REV. 41, 42 (2004); J. Thomas Rosch, Comm'r, Fed. Trade Comm'n, Remarks Before the ABA Section of Antitrust Law Spring Meeting: Consummated Merger Challenges--The Past Is Never Dead 1 (Mar. 29, 2012), available at http://ftc.gov/sites/default/ files/documents/public_statements/consummated-merger-challenges-past-neverdead/120329springmeetingspeech.pdf, [http://perma.cc/PGZ9-HVGV].
(175.) See Bailey, supra note 59, at 6 ("[T]here is little research that provides evidence suggesting that firms deviate from profit-maximizing behavior in a systematic or persistent way.").
(176.) Stucke, Twenty-First Century, supra note 7, at 517, 576 (arguing that although months of work go into pre-merger economic models, agencies generally do not revisit their models post-merger "to see if their model got it right," and that the government's current antitrust theory "needs to be rigorously tested to determine its accuracy in predicting the likelihood of competitive harm").
(177.) Id. at 578.
(178.) Indeed, the Supreme Court has permitted the government to challenge a merger some thirty years after it was consummated. See E.I. du Pont, 353 U.S. at 597-98.
(179.) Stucke, Twenty-First Century, supra note 7, at 579, 582-83.
(180.) See Richard A. Posner, Op-Ed., Treating Financial Consumers as Consenting Adults, WALL ST. J., July 22, 2009, http://online.wsj.com/news/articles/ SB10001424052970203946904574302213213148166, [http://perma.cc/67LQ-Z47M].
(181.) See Dep't of Justice & Fed. Trade Comm'n, supra note 2, at 8-18 (describing the many facts taken into account in the hypothetical monopolist test).
(182.) See John D. Bates, Customer Testimony of Anticompetitive Effects in Merger Litigation, 2005 COLUM. BUS. L. REV. 279, 282-83.
(183.) See Separate Statement of Commissioner J. Thomas Rosch at 2-4, FTC v. Lundbeck, Inc., (Nos. 10-3458, 10-3459) (Oct. 3, 2011) (arguing that "[b]oth the district court and panel decisions were classic examples of economic theories (and specifically price theory) preventing a fair and rational judgment" and criticizing reliance on "Lundbeck's economist and a handful of neonatologists that price cross-elasticity between the two drugs was 'very low'" over "Lundbeck's own business documents recognizing the substitutability of, and competition between, the two drugs"). This critique, of course, assumes that the testimony of the expert doctors who decide which drug to use is less illuminative than a defendant's internal business documents. This is a dubious proposition at best, not least because the latter are notoriously unreliable. See, e.g., Geoffrey A. Marine & E. Marcellus Williamson, Hot Docs vs. Cold Economics: The Use and Misuse of Business Documents in Antitrust Enforcement and Adjudication, 47 ARIZ. L. REV. 609, 613 (2005).
(184.) Stucke, Twenty-First Century, supra note 7, at 589 (emphasis added).
(185.) Reeves & Stucke, supra note 9, at 1585-86.
(186.) Stucke, Twenty-First Century, supra note 7, at 589-90.
(187.) Mat 590.
(188.) Maurice E. Stucke, The Implications of Behavioral Antitrust 2 (Univ. of Tenn. Knoxville Coll, of Law, Legal Studies Research Paper Series, Research Paper No. 192, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2109713, [http://perma.cc/GAL5-BG5U].
(190.) See Reeves & Stucke, supra note 9, at 1553 ("[T]he behavioral economics literature provides insights into ways to further sharpen antitrust rules to result in fewer false positives and false negatives over the long run.").
(191.) J. Thomas Rosch, Comm'r, Fed. Trade Comm'n, Remarks at the NERA 2010 Antitrust & Trade Regulation Seminar: The Next Challenges for Antitrust Economists 11 (July 8, 2010).
(192.) Reeves & Stucke, supra note 9, at 1586.
(193.) Id. at 1584.
(194.) Leegin Creative Leather Prods. Inc. v. PSKS, Inc., 551 U.S. 877, 890 (2007) ("Minimum resale price maintenance can stimulate interbrand competition ... by reducing intrabrand competition.").
(195.) See Easterbrook, supra note 92, at 39-40.
(196.) See Reeves & Stucke, supra note 9, at 1532.
(197.) Id. at 1554-60.
(198.) Id. at 1560-63.
(199.) Id. at 1563-67.
(200.) Id. at 1567-70.
(201.) See id. at 1532.
(202.) See id. at 1532 n.32.
(203.) Id. at 1542.
(204.) Id. at 1544.
(205.) See id. at 1554-60.
(206.) Id. at 1556-60.
(207.) Id. at 1560.
(208.) E.g., id. at 1563.
(209.) Id. at 1543.
(210.) Eastman Kodak Co. v. Image Technical Servs. Inc., 504 U.S. 451,465-66 (1992).
(211.) Id. at 475-76.
(212.) Id. at 466-67.
(213.) To illustrate the point, consider a well-known departure from rational choice: the tendency of consumers to embrace deals that offer enticing terms in the short run, but that are punitive over a longer time. This tendency reflects psychological conditions of framing effects and hyperbolic discounting. Empirical research has identified systemic deviations from rationality of this sort, which provide policymakers with sufficient information to adopt consumer-protection measures. It is of no relevance that the tendency of people to overemphasize the short run conflicts with neoclassical models.
(214.) Illustratively, Howard Schultz, the CEO of Starbucks, commented in 2010 that, upon taking office, he realized that "[w]e had embraced growth as a reason for being instead of a strategy." Beth Kowitt, Starbucks CEO: "We spend more on health care than coffee," CNN MONEY, June 7, 2010, http://money.cnn.eom/2010/06/07/news/ companies/starbucks_schultz_healthcare.fortune, [http://perma.cc/7HN6-SAA6].
(215.) See POSNER, supra note 154, at 430 ("[A] theory is not necessarily false just because the assumptions on which it rests are unrealistic.").
(216.) Bailey, supra note 59, at 6.
(217.) POSNER, supra note 154, at 420; see also Paul Krugman, Talk Given to the European Association for Evolutionary Political Economy: What Economists Can Learn from Evolutionary Theorists (Nov. 1996), available at http://www.mit.edu/~krugman/evolute.html, [http://perma.cc/FS46-N2U4] ("In economics we often use the term 'neoclassical' either as a way to praise or to damn our opponents. Personally, I consider myself a proud neoclassicist. By this I clearly don't mean that I believe in perfect competition all the way. What I mean is that I prefer, when I can, to make sense of the world using models in which individuals maximize and the interaction of these individuals can be summarized by some concept of equilibrium. The reason I like that kind of model is not that I believe it to be literally true, but that I am intensely aware of the power of maximization-and-equilibrium to organize one's thinking--and I have seen the propensity of those who try to do economics without those organizing devices to produce sheer nonsense when they imagine they are freeing themselves from some confining orthodoxy.").
(218.) POSNER, supra note 154, at 428; see also id. at 413 ("So many economic theorists in this century have been interventionist that economic theory itself has become dominated by concepts, such as 'perfect competition' (the conditions for which are never found in the real world), 'externality,' 'public good,' 'social welfare function,' and 'market failure,' that sound like invitations to public intervention.").
(219.) Stucke, Twenty-First Century, supra note 7, at 532.
Alan Devlin, Associate, Latham & Watkins LLP. BBLS (International), University College Dublin, 2004; LL.M., University of Chicago, 2005; J.S.D., University of Chicago, 2006; J.D., Stanford Law School, 2007. The opinions expressed in this Article do not necessarily reflect the views of Latham & Watkins LLP or its clients.
Michael Jacobs, Distinguished Research Professor of Law, DePaul University College of Law. B.A., Dartmouth College, 1968; J.D., Yale Law School, 1971. The authors thank Dan Ahasay, DePaul College of Law Class of 2015, for his excellent research assistance.
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|Title Annotation:||II. The Empty Promise of Behavioral Antitrust C. Behavioral Analysis of Specific Business Practices through V. Conclusion, with footnotes, p. 1038-1063|
|Author:||Devlin, Alan; Jacobs, Michael|
|Publication:||Harvard Journal of Law & Public Policy|
|Date:||Jun 22, 2014|
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