Technology Transfer and Non-Delegation

Christopher L. Sagers, Cleveland State University

In Progress


The argument here is that if there is any real change afoot it is that antitrust is really just shifting from one set of rules to another. Moreover, the growing body of new rules - that is, the rules that actually decide antitrust cases - often are not fundamentally economic in character and sometimes are fairly hard even to justify on efficiency grounds. In fact, their unifying theme is if anything just a judicial instinct favoring individual liberty. And, as the paper explains, the claim that recent changes in antitrust doctrine have been apolitical is patently absurd. In short, the claim here is that at least as good a case can be made that antitrust is increasingly rule-bound, libertarian (as opposed to neoclassically economic), and intractably political. The paper demonstrates this by collecting a series of rules currently coalescing in the lower courts, all of which amount to rules of more or less per se legality and all of which are better explained by libertarian individualism than neoclassical price theory.