What About The Supreme Court? The Lurking Threat To U.S. Antitrust Reform

By Jonathan B. Baker, American University – Washington College of Law

An unsympathetic Supreme Court threatens U.S. antitrust reform. This paper illustrates the problem by focusing on the holdings and dicta of two 21st century Supreme Court decisions, Verizon v. Trinko and Ohio v. American Express (Amex). In interpreting these decisions, some read Trinko to discourage antitrust liability for unilateral refusals to deal, and to welcome monopolies while not welcoming antitrust enforcement. Some read Amex to articulate a defendant-friendly approach to applying the rule of reason, to presume that vertical conduct promotes competition, and to condition liability on output reduction. This paper explains why these interpretations are variously incorrect, inappropriate, or troubling. It also discusses litigation strategies for persuading lower courts to limit the practical effect of these decisions and thereby pave the way for the Supreme Court to narrow them, procedurally or substantively, or overrule them.

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