Trebilcock and trade-offs

Through discussion of a sample of his work, this article identifies a key theme in Michael Trebilcock’s astonishingly deep and broad body of scholarship: trade-offs matter. Trebilcock’s analysis of a House of Lords case, Macauley v Schroeder Publishing, demonstrates the perils of one-sided economic analysis: the court ignored trade-offs in determining that a contract was unfair when there were facts and economic arguments that offered strong indications of the mutually beneficial nature of the contract. From a broader normative perspective, The Limits of Freedom of Contract calls attention to the complexities and trade-offs that inform the boundaries of legally permissible contracting. While economic analysis is useful, it does not have the only relevant things to say about difficult moral questions that surround certain contracts, such as those concerning parental surrogacy; a variety of normative perspectives are also relevant and ought to be taken seriously if the law is to reflect society’s values. Trebilcock’s thinking about optimal institutional design also reflects the importance of trade-offs and ties the strands of his work together. Where a question, such as the economic fairness of a contract, requires the assessment of a technocratic trade-off, a technocratic institution, such as a court, ought to decide it. On the other hand, where a question requires a trade-off among incommensurable normative values, such as surrogacy contracts, there ought to be political oversight and accountability, such as the direct regulation of the content of surrogacy contracts. The article discusses this institutional perspective in relation to his scholarship on competition law institutions. Not only does Trebilcock provide important substantive answers to legal questions that involve technocratic and normative trade-offs, but his work also provides an institutional way of thinking about trade-offs.