Proliferating Rules of Per se Antitrust: The Great Swiss Cheese and the Myth of Theoretical Unification

This paper responds to the growing consensus that antitrust law is moving away from the rule-bound approach of yesteryear, toward an open-textured approach based on “standards". Under this new regime, triers of fact are said to apply a broad, facts-and-circumstances approach in service of the public good. This view also usually takes a position on the relative place of economic theory in antitrust decision-making. It is said to have usurped the place formerly held by raw politics or ideology, since the relaxation of old rules is usually said to reflect growing awareness of potential efficiency gains from conduct previously treated as automatically or almost always illegal. In short, the growing consensus is that antitrust is increasingly flexible, economic, and apolitical.