A Comparison of the Legal Analysis of the Market in the United States and European Union

Words are often more of a stimulus for our imagination than a clear transfer of shared meaning. Their multiple possible meanings all signal different implications. A key concept used by court systems when they consider cases related to economic regulation is “the market.†Oftentimes, the concept is used as if it always means a particular form of the market. This paper addresses the question: How sensitive are U.S. and European courts to the negative social implications that flow from particular forms of “the market†in cases related to market regulation? To answer this question, first I explain the different economic performance effects of competitive and non-competitive market structures in terms of their effects on consumer wellbeing. This analytical background provides a framework for a critique of the assumptions made by the Supreme Court and the ECJ in some of their key regulatory cases. For example, cases like Citizens United v. FEC serve as model evidence of the potential negative effects that result when courts simply assume that “the market†is the perfectly competitive market. Contrarily, European Court of Justice (ECJ) cases, like Gintec International v. Verband Sozialer Wettbewerb, often appeal to the positive effects of “the market†only after analyzing the particular characteristics of the market in question. This comparative analysis, thus, highlights how the process of robustly analyzing market specifics, as exemplified by the ECJ, can aid U.S. courts in reaping the social benefits of competitive markets