The Differences in the Potentials of U.S. Antitrust Law and E.U. Competition Law as Written to Increase Economic Efficiency, Secure Liberal Moral Rights, and Instantiate Various Utilitarian and Other Egalitarian Conceptions of the Moral Good

This chapter examines the impact that the differences between U.S. antitrust law and E.U. competition law as written and correctly interpreted make to their respective potentials to increase economic efficiency, secure liberal moral rights, and promote any egalitarian conception of the moral good. This chapter has 8 sections each of which examines the ways in which the differences between written U.S. antitrust law and written E.U. competition law that Chap. 17 identifies affect the contributions that the two bodies of written law’s treatments of an individual category of antitrust-policy-coverable conduct can make to economic efficiency, the securing of liberal moral rights, and the instantiation of the various egalitarian conceptions of the moral good. I will restrict myself to making 4 of the points or sets of related points that this chapter makes: (1) although E.U. competition law’s prohibition of exploitative abuses of a dominant position would tend to instantiate various egalitarian conceptions of the moral good and probably would not decrease economic efficiency if it did not deter firms from making decisions that would cause them to occupy a dominant position, the test’s tendency to deter firms from making decisions that would give them a dominant position will tend to make the test less economically efficient and less promotive of egalitarian goals; (2) the fact that E.U. competition law prohibits natural-oligopolistic pricing regardless of whether it causes its practitioner to exploitatively abuse a dominant position while U.S. antitrust law does not prohibit natural-oligopolistic pricing tends to make E.U. competition law more economically efficient and more promotive of the various egalitarian conceptions of the moral good than is U.S. antitrust law; (3) the facts that U.S. antitrust law prohibits contrived-oligopolistic pricing that does not involve any agreement and single-firm predatory pricing by any firm regardless of its dominance whereas E.U. competition law does not prohibit such conduct by non-dominant firms tend to make U.S. antitrust law more economically efficient, more protective of liberal moral rights, and more prone to instantiate egalitarian conceptions of the moral good than is E.U. competition law; and (4) the fact that the U.S. law that promulgates a specific-anticompetitive-intent test of illegality gives victims of its violation the right to obtain legal redress (indeed, to secure treble damages) whereas E.U. competition law provides no victim of any violation of any of its provisions the right to obtain legal redress (A) raises the potential of the written U.S. law to secure liberal moral rights above the counterpart potential of E.U. competition law (because victims of conduct that is motivated by specific anticompetitive intent have a liberal moral right to obtain redress from the perpetrator and because this provision of U.S. law increases its deterrent impact [though I acknowledge that the legal entitlement to obtain treble damages is problematic from a liberal perspective]), (B) raises the potential of written U.S. antitrust law to increase economic efficiency above the counterpart potential of written E.U. competition law (since across all relevant instances conduct that is motivated by specific anticompetitive intent decreases economic efficiency), and (C) renders written U.S. antitrust law more likely to instantiate egalitarian conceptions of the moral good than is written E.U. competition law (roughly speaking, because the relevant victims tend to be poorer than those who will lose when the perpetrators are required to pay damages and because entitling victims of conduct motivated by specific anticompetitive intent to obtain legal redress will deter conduct that disserves all egalitarian conceptions of the moral good, given that such conduct reduces economic efficiency and increases material inequality).