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Next Steps In The Evolution Of Antitrust Law: What To Expect From The Roberts Court

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  • Gregory J. Werden

Abstract

Under the leadership of Chief Justice John G. Roberts, Jr., the Supreme Court has demonstrated a willingness to cast aside the Court's prior antitrust decisions. The qualified per se rule applicable to tying surely will not survive much longer, but what else might be in store is more speculative. This essay identifies four decisions relating to competitor collaboration in which the Court's prior application of the per se rule does not comport with its modern decisions. In two of the cases, the conduct likely would be found lawful today; while in the other two, the conduct most likely still would be condemned but only after an abbreviated application of the rule of reason. This essay also identifies three legal doctrines ready for retirement. They are the absolute requirement of market delineation as a predicate for merger analysis, the outmoded approach to market delineation of Brown Shoe, and the unhelpful formulation of the monopolization offense in Grinnell.

Suggested Citation

  • Gregory J. Werden, 2009. "Next Steps In The Evolution Of Antitrust Law: What To Expect From The Roberts Court," Journal of Competition Law and Economics, Oxford University Press, vol. 5(1), pages 49-74.
    • Handle: RePEc:oup:jcomle:v:5:y:2009:i:1:p:49-74.
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    File URL: http://hdl.handle.net/10.1093/joclec/nhn034
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    Cited by:

    1. Nicola Giocoli, 2013. "Games judges don't play: predatory pricing and strategic reasoning in US antitrust," Supreme Court Economic Review, University of Chicago Press, vol. 21(1), pages 271-330.
    2. Herbert Hovenkamp, 2011. "Harm to Competition Under the 2010 Horizontal Merger Guidelines," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 39(1), pages 3-18, August.

    More about this item

    JEL classification:

    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • L41 - Industrial Organization - - Antitrust Issues and Policies - - - Monopolization; Horizontal Anticompetitive Practices

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