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Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust

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  • Alan J. Meese

Abstract

Modern antitrust policy has a ‘love hate’ relationship with non-standard contracts that can overcome market failure. On the one hand, courts have abandoned various per se rules that once condemned such agreements outright, concluding that many non-standard contracts may produce benefits that are cognizable under the antitrust laws.1 The prospect of such benefits, it is said, compels courts to analyze these agreements under the Rule of Reason, under which the tribunal determines whether a given restraint enhances or destroys competition.2 At the same time, courts, scholars, and the enforcement agencies have embraced methods of rule of reason analysis that are unduly hostile to such agreements.3 In particular, courts and others are too quick to view such agreements and the market outcomes they produce as manifestations of market power. This article seeks to explain why these agreements are still the object of undue hostility.

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  • Alan J. Meese, 2005. "Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust," Journal of Competition Law and Economics, Oxford University Press, vol. 1(1), pages 21-95.
    • Handle: RePEc:oup:jcomle:v:1:y:2005:i:1:p:21-95.
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    File URL: http://hdl.handle.net/10.1093/joclec/nhi007
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    Cited by:

    1. Shastitko, Andrey & Golovanova, Svetlana, 2016. "Meeting blindly… Is Austrian economics useful for dynamic capabilities theory?," Russian Journal of Economics, Elsevier, vol. 2(1), pages 86-110.
    2. Steven G. Medema, 2020. "The Coase Theorem at Sixty," Journal of Economic Literature, American Economic Association, vol. 58(4), pages 1045-1128, December.

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