Friday, September 23, 2022

Antitrust Time Travel: Entry & Potential Competition

Antitrust Time Travel: Entry & Potential Competition


Sean Sullivan

University of Iowa College of Law

Henry Su

Bradley Arant Rose & White LLP



Entry analysis and potential competition doctrine have much in common. Both draw from predictions about future entry. Both require difficult assessments of entry barriers and incentives. Both are currently a doctrinal mess. This Article offers a clarifying perspective. Instead of separating analysis according to litigation posture (who wins or loses if the argument is proved) why not merge the offensive and defensive implications of potential competition and instead focus attention on the kind of competitive time travel in question? Is the claim about forward time travel (entry will impact future competition)? Or is it about backward time travel (the possibility of future entry is impacting current competition)? Separating analysis in this way reveals analytical flaws and unprincipled asymmetries in current thinking. It also exposes problems and paradoxes that beset all time travel arguments in rule of reason analysis.

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