The Harvard and Chicago Schools and the Dominant Firm

Herbert Hovenkamp, University of Pennsylvania Carey Law School


This paper begins with a wide-ranging comparison of “Chicago School” analysis with the earlier and more liberal “Harvard School” approaches, concluding that each had major influences in various areas of antitrust. It argues that terms of influence, the balance in the case law rather than the scholarship is in favor of the Harvard School. If the more conservative approach has had an influence, it is in “chastening” and thereby moderating Harvard School preference for vigorous enforcement. The paper turns to the question whether there can be a “general theory” of monopolization, an obsessive recent concern of conservative antitrust officials. It concludes that all proposed tests, while often containing useful insights in specific areas of law, fall short of the goal of a successful “general theory” because they fail to address particular undesirable forms of exclusion and are often underdeterrent. Finally, the paper explores two problem areas most controversial in courts today: (1) misuse of government processes, particularly in the form of fraud on the Patent Office; and (2) exclusionary discounting or discounts designed to drive out of the market, or discipline, rivals.