Rhetoric and Skepticism in Antitrust Argument

Authors

Herbert Hovenkamp, University of Iowa College of LawFollow

Abstract

In his essay on Workable Antitrust Policy Judge Easterbrook professes an extraordinary skepticism about economic models in general, and particularly about the ability of courts to use economic models to distinguish the competitive from the anticompetitive. But a profession of skepticism is itself a very powerful rhetorical device; it creates a perception of tough-mindedness, of refusal to yield real-world observations to analytic models or other abstractions, of extreme reluctance to accept any proposition that has not been clearly proven. Further, it is always very easy to be a skeptic, because every position ever taken except perhaps for a few tautologies - is capable of being doubted. In that case being a skeptic means that one knows the outcome the instant the burden of proof is assigned.

Recommended Citation

Herbert Hovenkamp, Rhetoric and Skepticism in Antitrust Argument, 84 Mich. L. Rev. 1721 (1986).
Available at: https://repository.law.umich.edu/mlr/vol84/iss8/6