THE CHICAGO SCHOOL AND THE FORMAL RULE OF LAW

Abstract

The Chicago School advanced a particular conceptualisation of the relationship between law and economics in antitrust that has been misunderstood for decades. A well-known consequence for US antitrust of their scholarship was for greater determinations of legality through the ad hoc, conduct-specific analysis of the rule of reason standard, inspiring advocacy for a similarly “more economic” approach to EU competition law. But although supporting the substantive economic outcomes of overturning rules of per se illegality, Bork, Posner, Easterbrook, and other Chicagoans routinely and consistently rejected this form of market intervention for determining legality. Rather than ex post effects-based analysis, the Chicagoan approach was to incorporate economics ex ante into the design of generalised norms (rules, presumptions, structured tests) to thereby foster legal certainty and administrability, virtues associated with the formal rule of law. The overlooked importance of the formal rule of law ideal can be discerned from Bork and Easterbrook’s antitrust writing, Posner’s economic analysis of law, and even traced back to the foundational scholarship of the Chicago School of economics. Reemphasising the importance of legal form in Chicagoan writing challenges their common contemporary portrayal, supporters of a particular version of “more economic” European enforcement, and the supposedly “neo”-Chicago approach.