Wednesday, June 22, 2005
I received two offprints recently, each providing a unique perspective on antitrust law.
Marina Lao, Professor of Law at Seton Hall Law School, makes the case for a deeper consideration of intent evidence in monopolization cases. She concluides in "Reclaiming A Role for Intent Evidence in Monopolization Analysis," 54 American University Law Review 151-213 (2004), that when a purely economic effects analysis produces inconclusive results, "we should turn to intent evidence for further guidance and possibly a proxy for effect." This approach, by the way, is analogous to the treatment of intent evidence in trademark infringement cases, where intent evidence can be used, for example, to support a finding of consumer confusion or diversion.
Timothy Greaney, Professor of Law and Director, Center for Health Law Studies at Saint Louis University Law School, analyzes "Chicago's Procrustean Bed" at 71 Antitrust Law Journal 857-920 (2004) (SSRN LINK). Professor Greaney's article looks at the application of antitrust law in the health care sector makes a self-described "modest claim" that "the tendency in practice to overlook market imperfections, together with many received assumptions and doctrines, often yields a distorted picture economic relations in health care markets." The claim is an important one for those who seek to rethink the classic Chicago School paradigm in antitrust as applied to merger analysis in the health care industry. Professor Greaney, like Professor Lao, takes the Chicago School to task for downplaying the role of intent evidence in antitrust.
Thanks for sending me these offprints and keep them coming!