Conservative & Libertarian Legal Scholarship: Antitrust Law

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VII. Antitrust Law

Economic Analysis and Antitrust Law (Terry Calvani & John J. Siegfried, eds., 1988), is a useful collection of readings.

Ernest Gellhorn, William E. Kovacic, and Stephen Calkins, Antitrust Law and Economics in a Nutshell (2004). A very good summary of the field by three noted scholars.

Robert H. Bork, The Antitrust Paradox: A Policy at War With Itself (1978, 1993). Judge Bork's early writings in antitrust were a major contribution to the development of the "Chicago School" of antitrust analysis. This book is a summary and extension of his earlier work, and a trenchant critique of the antitrust jurisprudence of the Warren Court. Since the original publication of the book in 1978, the Chicago School view of antitrust gained influence with federal judges and was very important in setting the agenda for the Justice Department and the Federal Trade Commission during the Reagan administration. For an overview of the law and economics literature on antitrust, consult chapters 9 and 10 of Richard Posner, Economic Analysis of Law.

Richard A. Posner, Antitrust Law (2001). A substantial rewriting of Posner's 1976 book, Antitrust Law: An Economic Perspective, which compiled his early writings on antitrust law, the 2001 edition extends his thinking to the economic developments of the 21st century, including the "new economy" and new industries such as software, Internet service providers, and communications. 

William F. Baxter, Separation of Powers, Prosecutorial Discretion, and the "Common Law" Nature of Antitrust, 60 Tex. L. Rev. 661 (1982). The first person to head the Antitrust Division of the Justice Department during the Reagan administration, Professor Baxter here sets out his views on the proper functioning of the federal antitrust enforcement agencies.

Frank Easterbrook, Workable Antitrust Policy, 84 Mich. L. Rev. 1696 (1986). Offers a set of "filters" for use in evaluating firm behavior and in setting goals for the antitrust enforcement agencies.

Fred S. McChesney, Talking ‘Bout My Antitrust Generation: Competition for and in the Field of Competition Law, 52 Emory L.J. 1401 (2003).  Examination of the historical purposes of antitrust, with an argument that the economic justification has won.  Additionally, a survey of the current competition within antitrust enforcement, both among American enforcers and between American and EU enforcers.

Alan J. Meese, Price Theory, Competition, and the Rule of Reason, 2003 U. Ill. L. Rev. 77 (2003). Critique of the modern Rule of Reason as biased against nonstandard agreements and argument in favor of a transaction cost model similar to the test that the Supreme Court embraces in determining whether a contract is unlawful per se.

The Causes and Consequences of Antitrust: The Public Choice Perspective (Fred S. McChesney & William F. Shughart II, eds., 1995), and Dominick T. Armentano, Antitrust and Monopoly: Anatomy of a Policy Failure (1982). While some antitrust liberals continue to attack the Chicago School view from the left, there are some critics of Chicago from the right. These two works are book-length treatments of this criticism.

Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (Richard Epstein & Michael Greve, eds., 2004). Leading experts explore routes to a new and better institutional design for global antitrust in the national and international contexts. While the authors all start from the premise that legal rules--substantive and procedural--should seek to maximize aggregate social welfare, many of them disagree on the suitable jurisdictional arrangements. On the domestic front, most authors opt for a sharper distinction between national and local responsibilities. At the international level, the authors' preferences range from a thoroughgoing harmonization of antitrust law to an antidiscrimination regime under WTO auspices to a defense of the existing, near-anarchic regime.

Richard Epstein, Monopolization Follies: The Danger of Structural Remedies under Section 2 of the Sherman Act, 76 Antitrust L.J. 205 (2009). Epstein discusses the interplay between innovation and monopolization enforcement. The monopoly produces some deadweight loss, but it also produces extensive producer surplus and some consumer surplus as well. The basic conclusion that follows from the case studies that Epstein presents is that the antitrust law treads on dangerous ground when it aggressively pursues structural remedies without any clear knowledge of how technological forces will dictate changes in market structure. A more modest approach that favors conduct remedies tailored to particular abusive practices is likely to yield a higher return at lower cost.

Richard Epstein, Monopoly Dominance or Level Playing Field: The New Antitrust Paradox 72 U. Chi. L. Rev. 49 (2005). In Part I, Epstein argues that the wisest course of action is to confine the operation of antitrust law to cartels and mergers that have the consequence of raising prices and restricting output, while allowing less restrictive treatment for unilateral actions. In Part II, Epstein examines in some greater detail the controversial decision in LePage's Inc v 3M in order to show the deleterious consequences that flow from the aggressive condemnation of unilateral practices. The general conclusion is that antitrust law should abandon its attack on these unilateral practices altogether, or at least sharply circumscribe their use.

Richard Posner, Vertical Restraints and Antitrust Policy, 72 U. Chi. L. Rev. 229 (2005). Posner briefly discusses important antitrust cases such as Standard Fashion and LePage's Inc.  v. 3M to illustrate the relationship between exclusive dealing, tying, bundling and loyalty rebates. He concludes that the proper antitrust stance toward vertical restraints may be procedural and institutional as much as it is analytical: how to enforce antitrust against practices that we are not prepared to treat as entirely lacking in possible redeeming economic virtues. The rule of reason may be a chimera, placing on courts analytical and evidentiary burdens that they cannot sustain.

Richard Posner, Federalism and the Enforcement of Antitrust Laws by State Attorneys General, 2 Geo. J.L. & Pub. Pol'y 5 (2004). Posner first offers an economic analysis of federalism and then applies it to two related questions. The first is whether state attorneys general should be permitted, as they are under existing law, to enforce federal antitrust laws in suits brought on behalf of the state's residents. The second is whether they should be permitted, as they also are under existing law, to enact and enforce their own state antitrust laws. Posner answers both questions in the negative. Although the analysis is primarily theoretical, the Appendix reports the results of a limited empirical study conducted by Posner.

Alan Meese, Liberty and Antitrust in the Formative Era, 79 B.U. L. Rev. 1 (1999). Part I reviews the classical ideology that dominated nineteenth-century thought about the appropriate limits on state regulation of private economic activity, as well as the liberty of contract jurisprudence that this ideology spawned. Part II reviews and analyzes formative era attempts by federal courts to reconcile the apparent conflict between liberty of contract, on the one hand, and the newly-passed Sherman Act, on the other. Part III addresses the role that liberty of contract played in the interpretation of state antitrust laws, in the federal and state courts. Part IV examines the implications of formative era case law for the modern controversy over how to interpret the Sherman Act.

Last updated November 2010

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