Date of Award
Doctor of Juridical Science (SJD)
The role of Empirical study in legal decision, even in the rule making, was increased by the economic development with the occurrence of economic realism. The incensement of economic implication of the law, without exception, impacted to the court’s ruling in the antitrust case and the antitrust law-making itself. Now it is one of the common way, court use concepts and theories developed by economists and weaves economic concepts into decisions to support their result.
The classical perspective of economic theories regarding antitrust law was start from early theorist Adam Smith in 1776, even it denied the economic implication. Through this dissertation, it was examined several modern economic theories along with Posner’s economic implication of antitrust law. Economic Realism, Neo-classical synthesis, and Chicago School’s economic view on antitrust law also was covered briefly.
In addition, to analyze the substantial implication of economic theories, it should be back to Jefferson and Hamilton’s contrasting views on governance. Because it is the same vein with current debates on the antitrust law where we should put the value on protectionism for equality-enhancing opportunities or efficiency-enhancing competitions. Jefferson urged a deconcentrated society and government, one that valued independent decision-making and equality-enhancing opportunities for small, local business. Control of economic concentrations of industrial power was central to Jeffersonian populism. Hamilton, on the other hand, feared that decentralization might interfere with the goal of efficiency. He was an exponent of a strong national government, particularly central control over financial and economic issues and institutions.
In the same vein, many commentators on the patent-antitrust intersection frame the issue as raising an inherent tension because antitrust aims to protect competition, whereas patent law creates monopolies that aim to eliminate competition in order to reward invention. However, it is doubtable whether the conflict is not a real conflict that we generally or conceptually had been long-accepted. Ultimately, IP confliction issues with Antirust case should be analysis in the same line with the regular antitrust case analysis. It is not the matter of confliction between to protect competition and to eliminate competition, but the matter of alteration of legal application methodology or legal doctrine.
Finally, back to the role of Empirical study in legal decision, the alteration of legal methodology or doctrine specially in the antitrust law that the tendency of change of empirical data analyses and economic implications, is unavoidable. Economic data analysis can be another barrier for the party who has less availability to conduct expense data analyzing to support or to rebut the argument in the court. Thus, government should put resources or efforts to reduce the barriers that are producing unfair justice and inequalities.
Bang, Jungmi, "New Dimensions in Economic Analysis of Legal Issues: The Appropriate Regulatory Balance of Antitrust Law in the Context of the Technological Innovation" (2017). Maurer Theses and Dissertations. 49.