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Aaron Panner, Jul 15, 2007
The Report of the Antitrust Modernization Commission devotes relatively little space to antitrust common law the judge-made doctrine that governs unreasonable restraints of trade under Section 1 and monopolization under Section 2 of the Sherman Act. That lack of emphasis particularly with regard to standards under Section 1 reflects in part a consensus that the project of doctrinal reform that began with Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., and Continental T.V., Inc. v. GTE Sylvania, Inc., has made substantial progress. The principle that antitrust law should protect the competitive process as the best way to ensure consumer welfare (Brunswick) and the recognition that the law must take account of possible pro-competitive justifications of restraints and thus avoid unjustified rules of per se illegality (Sylvania) once matters for debate in the legal community are now essentially unchallenged.