Journal Article

RECOGNIZING THE LIMITS OF ANTITRUST: THE ROBERTS COURT VERSUS THE ENFORCEMENT AGENCIES

Thomas A. Lambert and Alden F. Abbott

in Journal of Competition Law & Economics

Volume 11, issue 4, pages 791-853
Published in print December 2015 | ISSN: 1744-6414
Published online September 2015 | e-ISSN: 1744-6422 | DOI: https://dx.doi.org/10.1093/joclec/nhv020
RECOGNIZING THE LIMITS OF ANTITRUST: THE ROBERTS COURT VERSUS THE ENFORCEMENT AGENCIES

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  • Antitrust Issues and Policies
  • Technological Change; Research and Development

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In his seminal 1984 article, The Limits of Antitrust, Judge Frank Easterbrook proposed that courts and enforcers adopt a simple set of screening rules for application in antitrust cases, in order to minimize error and decision costs and thereby maximize antitrust's social value. Over time, federal courts in general—and the U.S. Supreme Court in particular, under Chief Justice Roberts—have in substantial part adopted Easterbrook's “limits of antitrust” approach, thereby helping to reduce costly antitrust uncertainty. Recently, however, antitrust enforcers in the Obama Administration (unlike their predecessors in the Reagan, Bush, and Clinton Administrations) have been less attuned to this approach, and have undertaken initiatives that reduce clarity and predictability in antitrust enforcement. Regardless of the cause of the diverging stances on the limits of antitrust, two things are clear. First, recent enforcement agency policies are severely at odds with the philosophy that informs Supreme Court antitrust jurisprudence. Second, if the agencies do not reverse course, acknowledge antitrust's limits, and seek to optimize the law in light of those limits, consumers will suffer.

Keywords: L40; K21; O34; O38

Journal Article.  31198 words. 

Subjects: Antitrust Issues and Policies ; Technological Change; Research and Development

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