Constitutional Theocracy. By Ran Hirschl
| Published date | 01 July 2011 |
| Author | Julian Rivers |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00865-6.x |
| Date | 01 July 2011 |
sial case to support such a provocative argument. Gap or no gap, a more fundamen-
tal problem is surely collective dominance by one or more undertakings in oligo-
polistic markets, which is not addressed by the Guidance Paper at all.
The ¢nal chapter constitutes a ‘primer’ on damages for exclusionary practices
by three economists, Chiara Fumagalli, Jorge Padilla and Michele Polo. This is
something of a straw in the wind as to the future private lawdimension to Article
102 enforcement, which has been a priority of the European Commission since
the 2005 green paper on the subject. A proposed directive on private antitrust
damages actions was pulled in late 2009, seemingly at the personal intervention
of Commission President Jose
ŁManuel Barroso following pressure by the
European Parliament.Whatever the truth, it may be possible under a future EU
instrument to claim damages from undertakings which have engaged in unilat-
eral practices leadingto anti-competitive foreclosure.Tothis end, the authors pro-
pose a time line of the loss from anexclusionaryabuse: an attrition phase, where
the competitor loses market share; a recoupment phase, where the infringer reaps
enhanced pro¢ts; and a growth phase, where the competitor re-enters the market
and wins back market share.The primer suggests that quantifying damages according
to this model will not be easy: unlike claims against cartel participants, there is no
obvious increase in price above the competitive level. Equally, there is no obvious
impact on consumer welfare. In exclusionary cases, they note, consumers su¡er a
price overcharge only in the recoupment phase but may bene¢t from lower prices
during the earlier attrition phase. Key implementation issues include estimating
counterfactual pro¢ts and surplus. A further essential legal uncertainty, illustrated in
the UK Enron Coal case before the Competition AppealTribunal is whether the uni-
lateral conduct was the cause of the loss and not the competitor’s own ine⁄ciency.
The literature on competition law and Article102 is, as they say, vast.Yet this
short book is a comprehensive examination of the state of the art. And, at only
220 pages long, it repays repeated reading. Sometimes, less really is more.
JohnTownsend
n
Ran Hirschl, Constitutional Theocracy,Cambridge, Mass: Harvard University
Press, 2010, 306 pp, hb d33.95.
In this fascinating and wide-ranging book, Ran Hirschl sets out a striking new
paradigm in comparative constitutional law, which he calls ‘constitutional theoc-
racy’. His opening chapter sets this up by contrasting a pure theocracy, in which
the supreme religious leader is also the supreme political leader, with the rise and
global reach of modern constitutionalism. He notes the now well-documented
resurgence of religion and makes the obvious connection:‘Despite the growing
scholarly interesti n andburgeoning literature on, comparative constitutional law
and the international migration of constitutional ideas, we still know little
about constitutional law and politics in countries where the potentially explosive
n
Associate, Cleary Gottlieb Steen & Hamilton LLP, Brussels; Barrister, Lincoln’s Inn.
Reviews
655
r2011The Authors.The Modern LawReview r2011The Modern Law Review Limited.
(2011)74(4) 631^660
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