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Journal of Competition Law and Economics Advance Access originally published online on November 24, 2008
Journal of Competition Law and Economics 2009 5(1):49-74; doi:10.1093/joclec/nhn034
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© The Author (2008). Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

NEXT STEPS IN THE EVOLUTION OF ANTITRUST LAW: WHAT TO EXPECT FROM THE ROBERTS COURT

Gregory J. Werden *

Correspondence: E-mail: gregory.werden{at}usdoj.gov

JEL: K21, L41

Under the leadership of Chief Justice John G. Roberts, Jr., the Supreme Court has demonstrated a willingness to cast aside the Court's prior antitrust decisions. The qualified per se rule applicable to tying surely will not survive much longer, but what else might be in store is more speculative. This essay identifies four decisions relating to competitor collaboration in which the Court's prior application of the per se rule does not comport with its modern decisions. In two of the cases, the conduct likely would be found lawful today; while in the other two, the conduct most likely still would be condemned but only after an abbreviated application of the rule of reason. This essay also identifies three legal doctrines ready for retirement. They are the absolute requirement of market delineation as a predicate for merger analysis, the outmoded approach to market delineation of Brown Shoe, and the unhelpful formulation of the monopolization offense in Grinnell.

* Senior Economic Counsel, Antitrust Division, The US Department of Justice. The views expressed herein are not purported to reflect those of the US Department of Justice.


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