Revitalizing Antitrust in Its Second Century: Essays on Legal, Economic, and Political Policy

By Harry First; Eleanor M. Fox et al. | Go to book overview

It was on the rocks of efficiency that antitrust of the sixties foundered. This concern is even greater today. It is not enough simply to return to legal reasoning. The policy that results is not acceptable simply because the tools used in its formulation are those known to lawyers. I suggest that courts have been led to the use of economic policy through precisely the methods that Professors Flynn and Ponsoldt applaud. The critical question for the future is the substance of antitrust policy. The failure to consider the costs that a given policy imposes will virtually assure its failure. A multivalued antitrust policy that does not adequately deal with efficiency claims cannot, and should not, command broad acceptance.


NOTES
1.
Ponsoldt, on the other hand, would apparently preserve the old per se rule (which I assume is what is meant by a "conclusive presumption").
2.
Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 ( 1911).
3.
Professor Comanor's inframarginal consumer analysis may qualify even these conclusions. The policy implications of a focus on inframarginal consumers are left unclear.
4.
Chicago Board of Trade v. United States, 246 U.S. 231 ( 1918).
5.
Fox, The Modernization of antitrust: A New Equilibrium, Cornell L. Rev.1140,1152- 54 ( 1981).
6.
The basis for the series of presumptions set forth by Flynn and Ponsoldt is somewhat unclear. They state that minimum vertical price fixing should be presumed unlawful because it interferes with distributor freedom and "usually results in higher prices to consumers." A similar presumption against maximum vertical price fixing is justified because "the restraint severely curtails the rights of distributors to succeed or fail through a competitive process" and "denied the rights of distributors and consumers to make their own judgments about pricing." But subsequently they note that their presumptive approach will permit plaintiffs in Section 1 cases to prove rule of reason violations in vertical nonprice restraint cases without proof of market power where "the anticompetitive effect of the restraint can be shown by direct evidence of price increases or reduction in output or service." Even a true Chicagoan would likely agree that there is no need to prove market power when adverse price and output effects are established. But why, one should ask, do Flynn and Ponsoldt seem to equate anticompetitive effects with output reduction and price increases, and at least imply that absent direct proof of such price and output effects, proof of market power would be necessary in one of the very cases to which they would apply a presumption of illegality? A requirement that market power be proven seems inconsistent with the basis for their presumption.
7.
Kauper, The "Warren Court" and the Antitrust Laws: Of Economics, Populism and Cynicism, 67 Mich. L. Rev. 325, 334 ( 1968).

-322-

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