From The Law and Politics Book Review

Vol. 9 No. 4 (April 1999) pp. 136-137.

 Antitrust and the Bounds of Power by Giuliano Amato. Oxford, UK: Hart Publishing, 1997, 133 pp. Paperback $40.00. ISBN 1-901362-29-9.

 Reviewed by William Kitchin, Department of Political Science, Loyola College in Maryland. Email:

 

 This book is obtuse, at places hard to follow, and presumes that the reader is pretty familiar with the operational concepts of American and European antitrust law. The book is also erudite, challenging, and occasionally interesting. So that the reader knows my vantage point, I practice in the area of American antitrust law, and this book is my first experience with European antitrust law.

Chapter one gives a succinct history of American antitrust law from 1890 (passage of the Sherman Act) to the late 1960's (the Proctor and Gamble case). The chapter traces the evolution of the purpose of antitrust law from protecting individualsí freedom to contract to the more recent purpose of protecting competition. This chapter provides a useful summary to the knowledgeable reader who can fill in some gaps, but the less informed reader will be at a substantial risk of drawing questionable conclusions or no conclusions at all.

Chapter two gives a brief but not superficial description of the Chicago School. This economic approach to antitrust law allows virtually any economic practice which is arguably "efficient." This means that as long as the consumer is not deprived of a choice and is not forced to accept second choices, anything goes. In spite of the current dominance of this extreme concept, Amato concludes that American antitrust law is not dead.

Chapters three, four and five discuss European antitrust law. The discussion is truly comparative in that Amato makes the similarities and differences between American and European antitrust law explicit and usually clear. Three differences are noteworthy:

(1)††††††† In Europe the principle of European integration often governs the outcomes of legal conflicts. In the U.S., there is no comparable, over-arching concept.

(2)††††††† In Europe the historically strong concept of state power results in antitrust disputes being understood as defining the scope of state power today. In contrast, in America antitrust disputes often are framed in terms of private rights and private economic power.

(3)††††††† In Europe a company possessing great market power, even to the extent of being a nonpublic monopoly, has a special responsibility not to eliminate competition. Failure to live up to that responsibility amounts to an "abuse of a dominant position" and can lead to legal sanctions. In America, this concept is similar to attempted monopolization, but the concept of "abuse of a dominant position" is peculiarly European. Moreover, this concept is referred to as an "objective concept," though this reviewer never grasped its objectivity.

The purpose of the book is to compare how European and American antitrust law set the bounds between private economic power and governmental power. I do not emerge from the difficult exercise of reading this book with a well-defined understanding of that issue. I do sense that European antitrust law by not embracing the Chicago School has taken a more enlightened, less ideological approach than American courts have. Consequently, in America private economic power is given much more latitude than in Europe. Beyond this general conclusion, the reader is on his or her own as to how this or that practice might fare in the American context and in the European context.

Who should read this book? Better yet, who will read this book? I would be surprised if anyone other than me and a handful of comparative antitrust scholars read the book (and maybe some captive students who fall prey to professorsí requirements in a few law schools). The book is intellectually solid and probably fills some gap out there, but not one which had been screaming for filler.

My recommendation is that if you are a practicing antitrust attorney in American and European antitrust law you should perhaps read this book. Otherwise I would recommend you read several of the intellectually insulting and simplistic opinions of judges inspired by the Chicago School. This will hopefully stir you to realize how valuable a political scientistís analysis of the scope of private economic power in antitrust law would be and how sorely it is needed.

 

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