Equality, discrimination, and competition law: Lessons from and for South Africa and Indonesia

Harvard International Law Journal

Volumn 41, Issue 2, 2000, Pages

  Fox, Eleanor M ^a  

^a NONE

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EID: 0041759722     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (4)

1. Law that facilitates market competition and helps make markets function well may be called "antitrust" (U.S. terminology) or "competition law" (European terminology). This Essay uses the terms interchangeably.
2. "Efficiency," as used in this context, refers both to productive efficiency - lowest costs of a firm to achieve its outputs and sales - and to dynamic efficiency - a term implying innovation by the firm to provide new or changed products and services that consumers desire. When the firms in a market for a particular good or service are efficient in this sense, and when there is vibrant competition in that market, the market will operate efficiently, thus providing the good or service consumers demand at the lowest cost. If such efficiency prevails across all markets, for diverse goods and services, then society can be said to have achieved allocative efficiency.
3. For a review of how U.S. law developed, see Eleanor M. Fox & Lawrence A. Sullivan, Anti-trust - Retrospective and Prospective: Where Are We Coming From? Where Are We Going?, 62 N.Y.U. L. REV. 936 (1987). In contrast to efficiency, as described in note 2, supra, equity "means fairness in distribution, in three dimensions: wealth, income, and opportunity." Fairness includes ethics as well as economics. Ethical criteria, or what is fair, includes equality. See WILLIAM G. SHEPHERD, THE ECONOMICS OF INDUSTRIAL ORGANIZATION 36-37 (4th ed. 1997). "Equality" can refer to equal treatment of people equally situated. "Equality" may also have a more dynamic meaning, as in the concept of a more meaningful chance to participate in markets "on the merits." This "better chance" concept may have a longer-run dynamic significance. Affirmatively opening up the channels for a better chance may help to bring historically marginalized people to a plane of greater economic equality and social respect.
4. For a review of how U.S. law developed, see Eleanor M. Fox & Lawrence A. Sullivan, Anti-trust - Retrospective and Prospective: Where Are We Coming From? Where Are We Going?, 62 N.Y.U. L. REV. 936 (1987). In contrast to efficiency, as described in note 2, supra, equity "means fairness in distribution, in three dimensions: wealth, income, and opportunity." Fairness includes ethics as well as economics. Ethical criteria, or what is fair, includes equality. See WILLIAM G. SHEPHERD, THE ECONOMICS OF INDUSTRIAL ORGANIZATION 36-37 (4th ed. 1997). "Equality" can refer to equal treatment of people equally situated. "Equality" may also have a more dynamic meaning, as in the concept of a more meaningful chance to participate in markets "on the merits." This "better chance" concept may have a longer-run dynamic significance. Affirmatively opening up the channels for a better chance may help to bring historically marginalized people to a plane of greater economic equality and social respect.