This essay critiques the so-called "quick look" approach to rule of reason analysis. Under this approach, courts presume that certain restraints create anticompetitive harm, regardless whether the plaintiff can establish actual harm or its surrogate, market power. Once this presumption arises,...

For several decades antitrust courts were extremely hostile to exclusive dealing agreements, banning such contracts, regardless of their benefits, whenever the manufacturer held a significant market share. The FTC went even further, banning such agreements whenever the manufacturer had a...

During antitrust's "inhospitality era," courts and expert agencies condemned any number of non-standard agreements as "unlawful per se" or nearly so. More recently, courts and agencies have repudiated or softened many such per se rules. In so doing courts and agencies have invoked the lessons of...

The Sherman Act's distinction between "unilateral" and "concerted" action is particularly salient where intrabrand restraints are concerned. Minimum resale price maintenance that takes the form of concerted action is unlawful per se, while price maintenance that takes place within a single firm...

For more than half a century, courts have viewed certain uses of intellectual property (IP) as misuse, rendering the IP unenforceable until the misuse is purged. The doctrine began with patents, but courts have recently extended it to copyrights. In most cases, it reflects concern over...

The two-sided analysis of platform businesses isn’t pro-defendant or pro-plaintiff. By accounting for business reality and modern economics, it helps courts and enforcement agencies reach the right decision and thereby reduce the likelihood of false negatives as well as false positives....

Conventional wisdom presumes that a supplier in a monopolistic market, or in an oligopolistic market that is not perfectly competitive, has the power to charge a supra-competitive wholesale price. In contrast, elaborating on recent economics studies, this Article shows that the supplier of an...

This paper considers the implications of Generics and Budapest Bank for the legal treatment of vertical restraints (in particular in the context of the ongoing review of the Block Exemption Regulation). The analysis focuses on two of the main justifications for vertical restraints, namely brand...

For over three centuries, Anglo-American courts have assessed employee noncompete agreements under a Rule of Reason. Despite longstanding precedent, some now advocate banning all such agreements. These advocates contend that employers use superior bargaining power to impose such “contracts of...

In Albrecht v. Herald Co., 390 U.S. 145 (1968) the Supreme Court declared vertical maximum price fixing unlawful per se. The Court identified three potential negative consequences of maximum rpm: (1) the agreement may fix prices too low for the dealer to provide services that enhance the quality...