Posted by Social Science Research Network
By Herbert J. Hovenkamp (University of Pennsylvania)
Abstract: Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it that way, even per se unlawful naked price fixing among rivals is a restraint on distribution rather than production. Naked price fixing assumes a product that has already been designed and built, and the important cartel decision is what should be each firm’s output, or the price charged to buyers. At the same time, however, many price agreements among rivals are in fact a part of design or production rather than distribution.
Many of the difficulties that antitrust law has had with vertical restraints arose because antitrust courts mistakenly viewed a practice as part of distribution when it was really part of design or production. Agreements that seem nominally to be about distribution or price are in fact mechanisms by which firms share design and production activities. For example, tying arrangements are not simply ways of pricing finished goods. Rather, as the long history of tying-like practices in patent law illustrates, most tying is the consequence…