《POLICY AND METHODS IN GERMAN AND AMERICAN ANTITRUST LAW A COMPARATIVE STUDY》

1 INTRODUCTION1

Principal Criticisms of American Antitrust Law2

The Different Goals of Comparative Law and Their Significance for This Work3

The Different Methods of Antitrust Law in Germany and in the United States5

Scope of This Work8

2 THE TENSION BETWEEN THE RULE OF LAW AND POLICY10

3 POLICY IN THE IMPLEMENTATION OF ANTITRUST LAW15

Acts of Recognition and Value Judgments15

Policy and Economic Decisions in German Cartel Law16

Policy and Economic Decisions in American Antitrust Law19

Economic Decisions and Value Judgments23

4 LEGAL LIMITS ON ANTITRUST POLICY DECISIONS26

Binding in the United States: Precedent and Stare Decisis27

No Strict Binding to Precedent28

"Interstitial Limits"30

Binding in American Antitrust Law31

The Binding of Precedent31

The Negative Binding of Interstitial Limits34

Other Limits in American Law Generally and Their Absence in Antitrust Law36

Restricted Decisional Authority36

Limited Number of Available Remedies37

Statute38

Binding to Statute in German Law Generally39

The Norm as Tatbestand and Legal Consequence40

Indefinite Legal Concepts; Discretion41

Different Justifications for Unbinding the Decision Maker44

Binding in German Cartel Law44

5 SEPARATE TREATMENT OF EQUITY AND POLICY VALUE JUDGMENTS47

The Separate Treatment of the Different Types of Value Judgments in German Cartel Law by the Separate Application of Norms According to Their Legal Consequences48

Permission Norms50

Intervention Norms52

Prohibition Norms54

Result of the Separate Treatment: Limitation of Policy Decisions to Legal Consequences Having Only Future Effect58

Imperfections in the Separate Treatment58

Disadvantages of the Separate Treatment60

The Absence of a Separation of Policy and Equity Judgments in American Antitrust Law61

Criminal Law Sanctions62

Civil Law Consequences63

Ill Effects for Rule of Law Security and for Policy of Mixing Equity and Policy Judgments64

Antitrust Policy Judgments as Administrative Acts or as Judicial Judgments66

Res Judicata and Policy67

Res Judicata and Rule of Law Security70

6 APPLICATION OF ANTITRUST LAW72

Issue Narrowing: The American Method of Application of Substantive Law73

Roles of Participants in Issue Narrowing73

Policy Decisions and Issue Narrowing76

Issue Narrowing in American Antitrust Law77

Critical Observations on the Suitability of Issue Narrowing in Antitrust Law81

Subsumption: The German Method of Application of Substantive Law83

Roles of Participants in Subsumption83

Subsumption in German Cartel Law86

7 ANTITRUST POLICY DECISION MAKERS90

Decision Makers in German Cartel Law91

The Federal Cartel Authority92

The Courts97

Decision Makers in American Antitrust Law102

The Federal Courts104

The Antitrust Division109

8 SUMMARY AND OUTLOOK116

Bibliography123

Abbreviations of Sources139

Table of Cases147

Notes151

Index171

About the Author175