Friday, November 28, 2008
Posted by D. Daniel Sokol
Greg Werden of DOJ Antitrust gives us some predictions in his piece Next Steps in the Evolution of Antitrust Law: What to Expect from the Roberts Court.
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.