Rules Versus Standards in Antitrust Adjudication

Daniel Crane, Assistant Professor, Benjamin N. Cardozo School of Law. Yeshiva University.

4/24/2008
(Original Publish Date: 6/10/2007)

Antitrust law finds itself in the midst of a creeping transition from rules to standards. Adjudicatory categories that have long held sway - such as the dichotomy between the per se rule and the rule of reason for collaborative conduct or categorical rules of liability and immunity in monopolization law are progressively being replaced by a multi-factor, ex post approach to antitrust adjudication. As antitrust has become de-politicized and de-ideologized, flexible technocratic expertise has replaced legalist conceptualism.