between the desire for competition laws to be accurate and consistent, yet also clear, predictable,
transparent, administrable and not too costly to apply; the question of when complex standards may be
more appropriate than simpler, bright line rules (or vice versa) is well rehearsed.
The difference between rules and standards is a matter of degree, and the line between them can be
fine. Some rules begin to resemble standards when, for the sake of accuracy, they require consideration
of additional circumstances. By the same measure, a standard may incorporate decision-making
principles that seek to attain some of the clarity associated with rules.
The blurring of the lines
between rules and standards has led to debate, in the antitrust context, as to whether doctrine governing
firm behavior should present a sharp dichotomy with two wholly distinct realms—one compartment in
which some conduct is prohibited (or approved) categorically, and a separate compartment in which
conduct is subject to a more elaborate examination of purpose and actual or likely effects—or whether
there should be a continuum of tests—a mix of rules, standards, and hybrid approaches in between. In
particular, whether and when there should be:
categorical rules that condemn certain conduct (for example, the U.S. rule of per se illegality);
categorical rules that allow certain conduct (rules of per se legality);
standards that test conduct with a more complex, multi-faceted analysis of the restrictive and
procompetitive effects of each agreement, accounting for the context in which the behavior took
place and the situation that would occur without the conduct; and/or
intermediate types of analysis, such as a rule which requires the weighing or balancing ofcertain
factors before it is applied, the application of rebuttable presumptions of legality or illegality, or a
structured standard which requires a series of specified factors to be taken into account.
Where courts, as they have in the U.S., conclude that antitrust chiefly seeks to promote economic
efficiency (allocative, productive, and dynamic), economics will guide the answer to these questions.
The term “standard” refers to “a general criterion of social choice,” such as a mandate to promote “competition.” The term
“rule” refers to a more precise statement that circumscribes the assessment of factors relevant to a decision according to the
standard. Id. at 258. The relative efficacy of rules and standards is an issue of virtually universal concern in the field of law.
See,e.g., Sepehr Shahshahani, The Nirvana Fallacy in Fair Use Reform,18M
INN. J. L., SCI.&TECH. 273, 283 & n. 59
(2015) (collecting sources); Daniel A. Crane, Rules Versus Standards in Antitrust Adjudication,64W
ASH.&LEE L. REV. 49,
52–54 & n. 11 (2007) (hereinafter Rules Versus Standards) (collecting sources); Louis Kaplow , A Model of Optimal
Complexity of Legal Rules,11J.L.ECON &ORG. 150 (1995).
10. See further Section 2 below. Informative treatments of this topic in antitrust law include Crane, supra note 9; Wolfgang
Kerber, “Rules vs Standards” or Standards as Delegation of Authority for Making (Optimally Differentiated) Rules,in
INTERNATIONALIZATION OF THE LAW AND ECONOMIC ANALYSIS 489 (Thomas Eger et al. eds., 2008); Andrew I. Gavil, Moving
Beyond Caricature and Characterization: The Modern Rule of Reason in Practice,85S
O.CAL.L.REV.733 (2012); Yannis
Katsuulakos & D. Ulph, On Optimal Legal Standards for Competition Policy: A General Welfare-Based Analysis,57J.
INDUS.ECON. 410 (2009); Symposium, The Future Course of the Rule of Reason,68ANTITRUST L.J. 331 (2000); Leon B.
Greenfield & Daniel J. Ma thieson, Rules Versus Sta ndards and the Antitrust Juri sprudence of Justice Brey er,2009
ANTITRUST, Summer, at 87 (2009) (reviewing rules versus standards debate in context of analyzing opinions of a jurist
who has focused on tradeoffs between the two approaches to formulating legal commands). For a discussion of the issue as it
arises in the treatment of vertical restraints, see OECD Policy Roundtables: Re sale Price Maintenance (2008), http://
www.oecd.org/daf/competi tion/43835526.pdf and Matthew Be nnett et al., Resale Price Maintena nce: Explaining the
Controversy, and Small Steps Towards a More Nuanced Policy (2011) 33 FORDHAM INT’L. L.J. 1278, 1281–82
(conducting a detailed assessment in every case might impose too high a burden on firms, competition agencies (and
other claimants) and courts). A separate literature discusses analytical approaches that enforcement agencies can sequence
the collection and assessment of information needed to apply a legal regime that subjects some conduct to assessment by
bright-line rules and reviews other behavior with standards. See Damien J. Neven, Identifying “Restrictions of
Competition”—Some Comments from a Law and Economics Perspective, in THE NOTION OF RESTRICTION OF COMPETITION
39 (Damien Gerard et al. eds., 2017).
11. See Carol M. Rose, Crystals and Mud in Property Law,40STAN.L.REV. 577 (1988).
256 The Antitrust Bulletin 62(2)