About Law, Economics and Argumentation : The Forgotten Case of Labor Concerns in Brazilian Competition Policy and Why It Still Matters

Optimists would say the Brazilian competition policy has been a successful case of antitrust revolution in Latin America. However, the perceived success of competition law hides old inconsistencies in antitrust practice regarding an unusual topic: the interplay between merger control and labor market regulation in the 1990s. That policy interplay could well be seen as only an old miscarriage of “antitrust justice” in developing countries. It may not be the case, though. Past intersections of different regulatory domains, and the lack of accountability as to the reasons for abandoning labor concerns, can still affect the legitimacy of competition policy. Such failures in policy-making could also create conflicts between the Brazilian Competition Authority (CADE) and authorities responsible for enforcing labor laws. In view of those potential hurdles to antitrust implementation, this paper takes a normative stance on the question of how CADE could justify what appears to be a definitive shift in competition policy away from labor market regulation. My analysis is centered on policy justifications: instances of legal argumentation meant to support implementing decisions. Accordingly, antitrust decision-making is framed within the argumentative discourse of competition law, as a product of practical reasoning informed by legal rules and economic knowledge. That said, I do not offer a positive answer as to whether and how CADE should justify its decision to break the interplay between merger control and the regulation of labor markets. Instead, my claim is only that, in defense of such implementation choice, justifications grounded on economic theory may become, in practice, an informal fallacy. This paper thus contributes to the literature by identifying logical flaws in arguments that could justify a policy decision implicit in Brazilian competition law. As an unusual topic in antitrust policy, the broken interplay between merger control and labor market regulation also allows me to explore the impact of economic indeterminacy on legal discourse. I demonstrate that disagreements among economists can reduce the plausibility of arguments based on economic consequences. In doing so, this paper challenges some uses of economic analysis of law, as argumentation technique, in legal reasoning