94 Volume 9, Special Issue, October 2019 Juridical Tribune
“Since its inception, antitrust policy has been forged by economic
Herbert Hovenkamp, The Sherman Act and the Classical Theory of
Competition, Iowa L. Rev., Vol. 74, 1988-1989, p. 1019.
The evolution of competition law reveals that the competition policies
underlying US competition law and jurisprudence are a complex product of
economic theory and group pressure. When the theory is robust, like the classical
one, it is adopted by the power, giving no margin for the affirmation of special
interests. However, when it was fragile, the pressure of the groups tended to
determine the policies2.
Nevertheless, this close relationship between competition law and
economics, in some issues, such us vertical restraints, there is a substantial time
gap between the advances of economic theory and the respective absorption of
The evolution of the normative and jurisprudential framework of
competition law also shows that the general perception in the United States, but
especially abroad, that the debate on competition policy is centred on the Chicago
School and the School Post-Chicago3.
This perspective, however, is incomplete by not mentioning the influence
of New Economic Institutionalism, especially Transaction Costs Economics and
Property Rights Theory in US antitrust law.
The contributions given by the New Economic Institutionalism about the
limits and nature of the company are essential in the understanding of vertical
integration and vertical restraints, taking into account the explanation given by the
Transaction Costs Economics.
As we will see, the solutions advocated by the Chicago School are largely
based on an analysis of transaction costs, which is why, although autonomous, we
identify between Transaction Costs Economics and the Chicago School a
2 Herbert Hovenkamp, The Sherman Act and the Classical Theory of Competition , p. 1019 refers that
“One of the great myths about American antitrust policy is that courts first began to adopt an
"economic approach" to an titrust problems in the relatively recent p ast -perhaps as recently as the
late 1970s. At most, this "revolution" in antitrust policy represented a change in economic models.
Since its inception, antitrust policy has been forged by economic ideology.”
3 This view ignores the extraordinary in fluence of the modern Harvard school in US jurisprudence on
matters such as predatory pricing, unilateral refusal to deal or administrabilit y of competition legal
rules. William E. Kovacic, The Intellectual DNA of Modern U.S. Competition Law for Dominant
Firm Conduct: pp. 45.
4 Hovenkamp, Harvard, Chicago, and Transaction Cost Economics, Antitrust Bull, Vol. 55, Nº 3,
2010, p. 622, Meese, Property Rights and Intrabrand Restraints, Cornell Law Review, Vol. 89,
2004, p. 556, idem, Price Theory and Vertical Restraints: A Misunderstood Relation, UCLA L
Rev., Vol. 45, 1997, p. 151.