Thursday, April 26, 2018
M. Niefer, Antitrust Div., US Dept. of Justice has written on Donald Turner, Vertical Restraints, and the Inhospitality Tradition of Antitrust.
ABSTRACT: Donald Turner famously said that he approached territorial and customer restraints on distribution “not hospitably, in the tradition of the common law, but inhospitably, in the tradition of antitrust law.” That statement has become emblematic to many commentators of a crude approach to non-price vertical restraints that improperly considered them per se illegal, denying businesses and consumers the benefits of pro-competitive practices. Turner, however, was more hospitable toward such restraints than his remark suggests. In each of the three most important Supreme Court cases that dealt with non-price vertical restraints—White Motor, Schwinn, and Sylvania—Turner argued for rule of reason treatment because he believed the restraints could be pro-competitive. His work as an academic, a policy maker, and an advocate over the course of more than fifteen years helped move the Court and antitrust enforcers toward the rule of reason. His work also illustrates the way in which Turner influenced the evolution of antitrust more generally by infusing it with economics, tempered by an appreciation of the practical difficulties of administering the law. This approach to antitrust led Turner to advocate for the use of presumptions grounded in economics to give structure to the rule of reason, anticipating later commentary on the “limits” of antitrust.