The impact of neoclassical price theory on monopolization law: a transatlantic perspective

This thesis explores the content and implications of Neoclassical Price Theory (NPT) for monopolization enforcement, as applied to predatory pricing, tying, and bundled discounts in both the United States and the European Union. When considering the foundations to monopolization enforcement, many authors have found distinct schools of antitrust thought, each featuring distinguishable legal and economic principles.1 Such principles support varying degrees of monopolization enforcement, with a ratchet effect upwards from Chicago, to Harvard, to Post-Chicago. I attempt to demonstrate a superseding claim, namely that the economic and legal principles embodied in NPT have influenced, above all other considerations, the development of predation, tying, and bundling law in both jurisdictions. Courts have constructed and altered that law from the following core concepts of NPT: rationality, competition, efficiency, and the rule of law. I further set-out to prove that NPT by itself does not support low levels of monopolization enforcement, or any particular level. Rather, it identifies the most relevant economic factors that determine price levels, efficiency, and consumer welfare more generally. This thesis is timely because it assesses both the theoretical and practical validity of NPT at a juncture in history when the EU Commission has issued a Guidance Paper on monopolization enforcement drawn principally from its precepts,2 and when the judiciary in both jurisdictions is considering expanding, or has expanded, cost tests to other price-based abuses