Strategic management, firm behavior and the law of potential competition

Bhattacharya, Shilpi (2023) Strategic management, firm behavior and the law of potential competition. Berkeley Business Law Journal, 20 (2). pp. 392-425.

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Considerable cross-jurisdictional scholarship has highlighted the limitations of antitrust law in the digital age. Merger review has been a particular target of these calls for reform. As antitrust law comes under the scanner, it is time to explore whether it may be energized by the injection of new theories and ideas outside the dominant paradigm of neoclassical economics. Management or business studies is a discipline that has direct relevance to antitrust law as a field that studies firm behavior in competitive and strategic situations. This paper explores how the view of the firm as strategic and boundedly rational can contribute to merger analysis in antitrust law. For instance, rather than focusing solely on incentives and ability of firms, antitrust law should make allowances for errors and biases in firm decision-making arising from managerial hubris, overconfidence bias, availability bias, strategic momentum, escalation of commitment, risk aversion etc. Through two detailed case studies, this paper argues that antitrust law should consider management practices of firms during merger review. Moreover, it is time for antitrust law to recognize that beyond profit maximization, achieving competitive advantage is a key motivator of firm decision-making. This paper adds to the growing literature calling for reforms in the law of potential competition in digital markets

Item Type: Article
Keywords: Antitrust law | Case studies
Subjects: Social Sciences and humanities > Social Sciences > Social Sciences (General)
Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Subhajit Bhattacharjee
Date Deposited: 04 Dec 2023 09:46
Last Modified: 04 Dec 2023 09:46
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