Varieties of neoliberalism: courts, competition paradigms and the Atlantic divide in anti-trust

Abstract

Abstract European anti-monopoly rules are now more intensively enforced than those in the USA, in contrast to the historical pattern. In this article, I evaluate the reasons why, using a combination of historical analysis of legal developments and empirical analysis of the pattern of enforcement and judicial review. Transatlantic differences in economic interests, business power, and the relative influence of economists cannot fully account for the policy divide. American and European anti-trust policy are structured by distinct competition paradigms, which have been institutionalized by courts through case law. In the USA, a laissez-faire jurisprudential regime has blocked or discouraged anti-monopoly enforcement. In Europe, an ordoliberal jurisprudential regime has facilitated a more intensive enforcement program. In highlighting how case law structures regulatory paradigms, the analysis shows that courts can contribute to both ideational continuity and change in economic policy.