Abstract
The analysis of antitrust issues is captured from time to time by rigid rules comprised of fixed concepts that are deductively applied to pre-ordained facts in disputes deemed subject to the antitrust laws. The rules are characterized by narrow assumptions of what will be permitted to be facts, by concepts that are fixed in concrete by rigid definitions, and by unstated normative assumptions underlying the rules and concepts. Calcification of concepts sets in and mumpsimus becomes the distinguishing characteristic of defenders of the periodic status quo generated by the antitrust less fashionable at one time or another. The mechanical jurisprudence described by Pound, where unexamined premises are used as ultimate answers rather than tentative hypotheses, is substituted for an inductive legal process where premises serve as working hypotheses for the exploration of assumptions behind the hypothesis in light of the reality under investigation.
Recommended Citation
Flynn, John J.
(2006)
"The Role of Rules in Antitrust Analysis,"
Utah Law Review: Vol. 2006:
No.
3, Article 12.
Available at:
https://dc.law.utah.edu/ulr/vol2006/iss3/12