Saturday, April 19, 2008
Posted by D. Daniel Sokol
Something in English that has not translated into other languages has been the sexualized language of antitrust- “naked” and “hard-core” cartels (although perhaps one also could make the case for “cheap talk”). I will omit discussion of “abuse of a dominant position” because of the European origin of the term. Why use these sexualized terms in the first place and what are the origins of these terms? I will leave the former and more theoretical question to the law and literature crowd. As to the latter question, I have tracked these terms in both the JLR and ALLCASES databases in Westlaw (appropriate since Thompson-West is our exclusive sponsor—click on their advertisements!). The first article in which the term “hard core” cartel appears in a law journal is an article by Rick Rule in the Antitrust Law Journal in 1985 (54 Antitrust L.J. 1121). The term “naked” restraint of trade first appeared in a 1950 Harvard Law Review note (63 Harv. L. Rev. 1400). Interestingly, though the term “hard core” cartel has appeared in 450 academic articles, it has been mentioned only twice in US cases, both in the last seven years Tritent Intern. Corp. v. Commonwealth of KY, 467 F.3d 547 (2007) and A.D. Bedell Wholesale Co., Inc. v. Philip Morris Inc., 263 F.3d 239 (2001). When I searched for a “naked” restraint of trade and/or a “naked” cartel or a “naked” market division, I found 470 cases, the oldest of which is White Motor Co. v. U.S., 372 U.S. 253 (1963). What about the use of the terms in the internet age by antitrust agencies? As between US antitrust enforcement agencies, only DOJ can prosecute cartels, so I searched their website. They have 595 mentions of the term “hard core” cartels and 253 mentions of the term “naked.” So, it seems that academics and DOJ staff are far more into sexualized antitrust terms than judges, particularly when referring to “hard core” cartel offenses. Interestingly, even though the FTC does not take on criminal cases, there are 9,455 mentions of the term hard core cartel on the FTC website and 16,617 mentions of naked cartels, agreements or restraints.