The Language of Law and the Language of Business
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The Language of Law and the Language of Business
Loyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businesser WallerLọyoíd L'nnvrtiiy Chicago, School of Law, ỉwalkl(ịMuc.eduFollow this and additional works at: http://laweconunons.luc.edu/facpubsÒ* Part of the .Antitrust and Trade Regulation CommonsRecommended CitationWaller, spencer Weber, The Language of Law and the Language of Business 52 Case West Res The Language of Law and the Language of Business. L Rev. 283 (2001).'Ihis Article is brought to you for free and open access by LAW eCosnmunn It hat been accepted for incknioo in Faculty lAiblicatioThe Language of Law and the Language of Business
ro & Other Wsrks by in authorired administrator of LAW «Cotnmoa& For more information, please contact law-hbrarytS'lucedaThe Language of Law and the LLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businessied heavily on economic discourse and price theory in particular in recent times. There have been fierce debates on what types of economics are the most useful and whether other values inform antitrust law and policy, but economics has reigned supreme, especially during the modem era.This is quite p The Language of Law and the Language of Businesseculiar in the following sense. Antitrust is a body of law that regulates business behavior, but antitrust has adopted a language both dtffcrent, andThe Language of Law and the Language of Business
at odds with, the language of the very people being regulated. Even worse, antitrust has chosen a unique discourse that is self-denying as to one of tLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businesseaders are trained beginning in undergraduate and graduate business programs and throughout their careers that the very opposite is true: that market power is achievable and various business and management theories provide a sound analytical basis for achieving such power in the real world.Professor The Language of Law and the Language of Business and Director of the Institute for Consumer Antitrust Studies, Loyola University Chicago School of Law. Of Counsel, Kaye Scholcr LLP, New York City. AThe Language of Law and the Language of Business
substantial portion of the work on this article took place while I was a member of die faculty of Brooklyn Law School. I thank all my former colleaguLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businessw School library for theừ assistance in gaining access to the papers of Professor Milton Handler, Howard Bergman, Jim Fanto, Bert Foer, David Gerber, Ted Janger, Michael Jacobs, Leo Raskind, and Larry Solan for their helpful comments; Wosc Turn Ebba and Camellia Noriega for their research assistance The Language of Law and the Language of Business; and workshops at DePaul University College of Law, Loyola University Chicago School of Law, University of Wisconsin Law School, and Fordham UniversiThe Language of Law and the Language of Business
ty School of Law which generated many helpful suggestions and critiques. I gratefully acknowledge tire financial support of both Brooklyn Law School aLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businesss Governance 8 (1994).283HernOnline .. 52 Case w. Res. L. Rev. 283 2001-2002284CASE WESTERN RESERVE LAW REVIEW(Vol. 52:283This article is both a history and genealogy2 of the discourse used in the discipline of antitrust law. My thesis is that antitrust adopted economics as its primary discourse as The Language of Law and the Language of Businesspart of the creation of a separate discipline of antitrust, separate from a general field of business law or corporate and securities law. The split bThe Language of Law and the Language of Business
egan in the 1920s and came to full fruition in the 1950s.3 Without suggesting that this was a conscious or deliberate choice, antitrust evolved into aLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businessguage. Economics became that language as part of a process of separation from the general business bar which remained tied to the language of business, a language that was increasingly discredited socially and professionally during the Great Depression, the key period when antitrust became its own f The Language of Law and the Language of Businessield.The premises and methodology of this article derive in substantial part from the writings of Michel Foucault, particularly in his work of uncoverThe Language of Law and the Language of Business
ing the archeology and genealogy of the growth of power through the creation of scientific and professional disciplines and specialized discourses. WhLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businessvelopment of antitrust law and policy.42 See Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 83 (Colin Gordon cd., 1980) [hereinafter Foucault. Power/Knowledge] ("What [genealogy] really does is to entertain the claims to attention of local, discontinuous, disqualified, ille The Language of Law and the Language of Businessgitimate knowledges against the claims of a unitary body of theory which would filler, hierarchise and order them in the name of some true knowledge .The Language of Law and the Language of Business
...”). For more on Foucault’s views on discourse, truth, and power sec MICHEL Foucault, The Archaeology of Knowledge AND THE Discourse of Language (AlLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Business See infra notes 6-40 and accompanying text.The principal scholar to have done so is Rudolph Perilz whose work helped inspire this project. See Rudolph J.R. Peritz, Competition Policy in America. 1888-1992: History, Rhetoric, Law (1996). Readers interested in an introduction to the work of Michel Fo The Language of Law and the Language of Businessucault will benefit from Michel Foucault, The Foucault Reader (Paul Rabinow cd., 1984) and Hunt & WICKHAM, supra note 1. More serious readers interestThe Language of Law and the Language of Business
ed in Foucault’s principal texts should consult FOUCAULT, Archaeology, supra note 2; Michel Foucault, The Birth of the Clinic an Archaeology of MedicaLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businesslt, 3 THE HISTORY of Sexuality: The Care of the Self (Robert Hurley trans., 1986); Michel Foucault, 1 THE History OF Sexuality: An Introduction (Robert Hurley ttans.. 1978); Michel Foucault, 2 THE History of Sexuality: The Use of Pleasure (Robert Hurley trans., 1985); Michel Foucault, Madness and Ci The Language of Law and the Language of Businessvilization: a History of insanity in the age of Reason (Richard Howard trans., 1965); MICHEL Foucault, the Order of things: An Archaeology of the HumaThe Language of Law and the Language of Business
n Sciences (Vintage Books 1994) (1966); Foucault. POWER/KNOWLEDGE, supra note 2.HeinOnline - 52 Case w. Res. L. Rev. 284 2001-20022001] THE LANGUAGE OLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businessfirst days of business school in the language and techniques of strategic planning and brand management. They strive for and often achieve significant lasting market power. As the Chicago school style of law and economics loses its vise grip on the discipline of antitrust, lawyers, judges, and polic The Language of Law and the Language of Businessy makers need to be conversant with all facets of business theory and discourse, not just undergraduate level economic theory. In short, the decisionThe Language of Law and the Language of Business
makers we regulate take this stuff seriously, so should we.I. The Birth of a DisciplineEach society has its regime of truth, its “general politics” ofLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer Webe The Language of Law and the Language of Businessand false statements; the means by which each is sanctioned; the techniques and procedures accorded value in the acquisition of truth; and the status of those who are charged with saying what counts as true.5When the Sherman Act was passed in 1890,6 there was no specialized antitrust discipline or a The Language of Law and the Language of Business specialized antitrust branch of the practicing bar or legal academy. The formal markers of the specialized discourse of a true antitrust discipline dThe Language of Law and the Language of Business
id not appear until the 1920s and early 1930s. By then, the Sherman Act had been supplemented by three additional antitrust statutes7 and the courtsLoyola University Chicago, School of LawLAW eCommonsFaculty Publications & Other Works2001The Language of Law and the Language of BusinessSpencer WebeGọi ngay
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