Abstract
This paper explores the possibility that courts, in their adjudication of antitrust and regulatory disputes, articulate an implicit “economic doctrine” that transcends ordinary legal reasoning and may be conceptualized as a constitutional doctrine. Traditionally, constitutional courts such as the U.S. Supreme Court (SCOTUS) and the Court of Justice of the European Union (CJEU) are portrayed as guardians of legal and democratic order. Yet, in practice, their engagement with competition law and regulated industries reveals systematic recourse to economic assumptions—about markets, efficiency, consumer welfare, and institutional design—that shape constitutional understandings of the economy.
The central research question is whether judicial reliance on economic reasoning can be understood as a constitutional doctrine, and what this reveals about the legitimacy of courts in market societies. From a Law and Economics perspective, such a doctrine would reflect more than the aggregation of individual judicial preferences: it would constitute a set of recurring justificatory strategies through which courts delineate the permissible scope of state intervention in the economy. This study situates the inquiry at the intersection of economic analysis of law, democratic theory, and comparative constitutionalism.
Methodologically, the paper employs a qualitative, case-based analysis of landmark decisions in both antitrust and sectoral regulation. These fields serve as “laboratories” where judicial reasoning most visibly intersects with economic concepts. The comparative framework between SCOTUS and the CJEU is especially fruitful: the two courts often pursue convergent goals, but their methods of justification diverge in significant ways, reflecting differences in constitutional architecture and traditions of judicial review.
The findings are presented along three trajectories. First, convergence: U.S. and EU jurisprudence have shared objectives, notably the protection of consumer welfare and the preservation of competition, with mutual borrowing of doctrines such as the essential facilities principle. Second, divergence: despite similar goals, the courts’ justificatory frameworks differ—for instance, SCOTUS’s restrictive approach after Trinko contrasts with the CJEU’s more expansive application of essential facilities reasoning in cases such as Bronner and Magill. Third, autonomization: recent developments in digital and AI regulation illustrate how each court is consolidating its own doctrinal framework, with the EU embracing hybrid regulatory-antitrust instruments like the Digital Markets Act, while the U.S. judiciary adheres to a narrower, effects-based antitrust paradigm.
The contribution of this paper is twofold. Conceptually, it advances the notion of an “economic doctrine of judges” as a constitutional phenomenon, thereby enriching both legal philosophy and economic analysis of law. It suggests that constitutional courts are not merely interpreters of legal texts, but also architects of market governance whose legitimacy depends on the consistency and transparency of their economic reasoning. Empirically, the comparative study illuminates the institutional factors shaping judicial economic doctrine: the EU’s reliance on regulatory authorities and composite procedures fosters alignment between administrative and judicial reasoning, while in the U.S., the erosion of Chevron deference and the skepticism toward agencies highlight judicial self-assertion in economic policymaking.
By framing judicial economic reasoning as constitutional doctrine, this paper demonstrates how law and economics intersect at the highest judicial level, shaping the allocation of public and private power in market societies. The analysis contributes to broader debates in Law and Economics about institutional design, legitimacy, and the evolving relationship between courts, democracy, and the economy.
The central research question is whether judicial reliance on economic reasoning can be understood as a constitutional doctrine, and what this reveals about the legitimacy of courts in market societies. From a Law and Economics perspective, such a doctrine would reflect more than the aggregation of individual judicial preferences: it would constitute a set of recurring justificatory strategies through which courts delineate the permissible scope of state intervention in the economy. This study situates the inquiry at the intersection of economic analysis of law, democratic theory, and comparative constitutionalism.
Methodologically, the paper employs a qualitative, case-based analysis of landmark decisions in both antitrust and sectoral regulation. These fields serve as “laboratories” where judicial reasoning most visibly intersects with economic concepts. The comparative framework between SCOTUS and the CJEU is especially fruitful: the two courts often pursue convergent goals, but their methods of justification diverge in significant ways, reflecting differences in constitutional architecture and traditions of judicial review.
The findings are presented along three trajectories. First, convergence: U.S. and EU jurisprudence have shared objectives, notably the protection of consumer welfare and the preservation of competition, with mutual borrowing of doctrines such as the essential facilities principle. Second, divergence: despite similar goals, the courts’ justificatory frameworks differ—for instance, SCOTUS’s restrictive approach after Trinko contrasts with the CJEU’s more expansive application of essential facilities reasoning in cases such as Bronner and Magill. Third, autonomization: recent developments in digital and AI regulation illustrate how each court is consolidating its own doctrinal framework, with the EU embracing hybrid regulatory-antitrust instruments like the Digital Markets Act, while the U.S. judiciary adheres to a narrower, effects-based antitrust paradigm.
The contribution of this paper is twofold. Conceptually, it advances the notion of an “economic doctrine of judges” as a constitutional phenomenon, thereby enriching both legal philosophy and economic analysis of law. It suggests that constitutional courts are not merely interpreters of legal texts, but also architects of market governance whose legitimacy depends on the consistency and transparency of their economic reasoning. Empirically, the comparative study illuminates the institutional factors shaping judicial economic doctrine: the EU’s reliance on regulatory authorities and composite procedures fosters alignment between administrative and judicial reasoning, while in the U.S., the erosion of Chevron deference and the skepticism toward agencies highlight judicial self-assertion in economic policymaking.
By framing judicial economic reasoning as constitutional doctrine, this paper demonstrates how law and economics intersect at the highest judicial level, shaping the allocation of public and private power in market societies. The analysis contributes to broader debates in Law and Economics about institutional design, legitimacy, and the evolving relationship between courts, democracy, and the economy.