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Judicial review of anticompetitive state action: two models in comparative perspective

Judicial review of anticompetitive state action: two models in comparative perspective At present, there are two primary models of judicial review of state regulatory decisions that impair competition. A representation reinforcement model, associated with the Midcal approach in the USA, seeks to make state regulators politically accountable when they take decisions impairing competition. A substantive view model, associated with aspects of EU competition law and freedom of movement jurisprudence, has judges substantively review the merits of the regulatory decision. Both models have significant drawbacks. The representation reinforcement model often fails because of cost externalization on non-voters or asymmetries between the concentration of benefits on producers and the diffusion of costs on consumers. The substantive review model can create problems of counter-majoritarianism and judicial legitimacy. The weaknesses of the two dominant models suggest that countries implementing new mechanisms of judicial control over regulatory decisions should consider the creation of alternative models. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Antitrust Enforcement Oxford University Press

Judicial review of anticompetitive state action: two models in comparative perspective

Crane, Daniel A.
Journal of Antitrust Enforcement , Volume 1 (2) – Oct 25, 2013
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Publisher
Oxford University Press
Copyright
The Author 2013. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
2050-0688
eISSN
2050-0696
DOI
10.1093/jaenfo/jnt006
Publisher site
See Article on Publisher Site

Abstract

At present, there are two primary models of judicial review of state regulatory decisions that impair competition. A representation reinforcement model, associated with the Midcal approach in the USA, seeks to make state regulators politically accountable when they take decisions impairing competition. A substantive view model, associated with aspects of EU competition law and freedom of movement jurisprudence, has judges substantively review the merits of the regulatory decision. Both models have significant drawbacks. The representation reinforcement model often fails because of cost externalization on non-voters or asymmetries between the concentration of benefits on producers and the diffusion of costs on consumers. The substantive review model can create problems of counter-majoritarianism and judicial legitimacy. The weaknesses of the two dominant models suggest that countries implementing new mechanisms of judicial control over regulatory decisions should consider the creation of alternative models.

Journal

Journal of Antitrust Enforcement – Oxford University Press

Published: Oct 25, 2013

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