Clash of rationalities? Economic science and legal reasoning in the production of competition policy in Brazil

The research discusses the interaction of economic science and legal reasoning in the production of competition law in Brazil by analysing the decisions and the professional and academic trajectories of economists and lawyers recruited as commissioners of the Brazilian competition authority, the Conselho Administrativo de Defesa Econômica (CADE), between 1994 and 2011. The objective is to assess if different professional rationalities imply substantial clashes in decision-making. The analytical potentials of considering economists and lawyers as conflicting groups of experts in transforming the State’s roles in governing the economy, as well as the complementarity of economic and legal forms of knowledge are discussed. Competition policy is understood as a technology imported in Brazil in the context of State reform and economic internationalization. Economics consolidated as the legitimate expertise for producing antitrust regulations within the Brazilian competition authority, and as a specific form of rationality to be adopted in decision-making: the economic analysis of law. Based on empirical data, the research evaluates the hypothesis that the use of economic concepts and methods produce conflicts between economists and lawyers, given that the latter do not generally possess this expertise. First, the academic and professional profiles and trajectories of the 46 agents recruited to CADE in the period 1994-2011 are analyzed. The objective is to identify which regulators possess the expertise defined as legitimate, and map the diffusion of economic analysis of law in this social space. Second, based on a sample of merger reviews decisions, the use of economic theories and legal doctrines, the substantive orientation of the decisions and the level of agreement between lawyers and economists are described. The two empirical sets are cross-checked in order to test the correlation between professional backgrounds, the use of economic and legal expertise and the content of the decision.