My research at the Institute, which was instrumental to completing my doctoral thesis, set the foundations for a broader project, aimed to offer a general theory on the use of presumptive reasoning in economic law. Although the project is still underway, I provide here a short summary of the thesis.
Last Update: 24.09.13
The thesis explained that there is a gap in the “law and economics” literature with regard to the incorporation of economics into law, and set out the conceptual framework for an enquiry into the peculiarities of incorporation via “economic adjudication” by referring to the need for legal systems to resort to presumptive reasoning.
The problem which presumptive reasoning aims to address is one of interaction between law and complexity. After identifying 2 types of complexity -"technical" and "vacuum-filling" complexity- , a comparative analysis demonstrated that only the latter requires unfettered deference to the administration in public law disputes. Stressing the significance of this concept in the "law and science" conundrum, the thesis showed the problems that this generates for legal frameworks which (like the US Supreme Court’s Daubert decision) attempt to rationalize the scientific process so as to obtain a definite, ultimate answer. It was suggested that the best way out of the conflict between these two different approaches (one of systemic doubting, the other that requires definite answers) is for the legal system to seek closure of the scientific inquiry as soon as possible through default, but rebuttable rules called presumptions.
However, due process requires courts reviewing the use of such presumptions to undertake a sui generis proportionality analysis consisting of the following questions: (1) is the objective that the presumption aims to achieve legitimate? (2) is the presumption used reasonable, that is, consistent with general experience or common sense, and does it allow rebuttal on this point?(3) does the presumption restrict the right to be heard more than necessary?
This general framework was applied specifically to EU antitrust enforcement, moving from the postulate that the Commission has given rise to the expectation that it will pursue the objective of consumer welfare, and thus holding any intermediate standards to be presumptions. Illustrating the differences of the three modes of analysis of per se illegality, rule of reason and quick look analysis, it was argued that this third type is the best way to enable a system to evolve without the burden of a rule of reason applied to all cases. However, it was shown that the EU version of “quick look”, which makes the rebuttal for defendants more difficult than the case for plaintiffs, violates the right to be heard and has the effect of chilling pro-competitive business conduct.
Nicolo Zingales
Dr. Mark Oliver Mackenrodt
Prof. Dr. Giorgio Sacerdoti
Ökonomisierung des Kartellrechts
