I was at the American Bar Association’s Spring Antitrust meeting in Washington yesterday. The topic for the panel was to address old antitrust doctrines that are likely to go the way of the dodo. Henry Su of Howrey organized a good panel consisting of FTC Commissioner Thomas Rosch, Gail Levine of Verizon, Greg Werden of the Antitrust Division of the Department of Justice and me. We had a lively and fun discussion. Leading candidates for revision were the (nominally) per se rule against tying; the Supreme Court’s old merger cases; and cases at the intersection of patents and antitrust. I also got to see a number of former students who are putting their education to work doing antitrust law. That is always very nice.
I think that I can claim the funniest line of the day, which was the question I posed in the post title when we turned to a brief consideration of the Whole Foods/Wild Oats merger. (That is way too much antitrust inside baseball, I suspect, but if you want to know more, see this.)
(And if you want an answer to the question, one word: Copperweld.)
You can read my written contribution for the panel at SSRN:
Abstract: In this essay prepared for the American Bar Association’s 56th Antitrust Law Spring Meeting, I consider two issues that pertain to the overall question of what antitrust doctrines are up for retirement. First, we can’t consider that without understanding how the Supreme Court approaches stare decisis in antitrust. The Court’s 5-4 decision in Leegin identified some of the fault lines on this issue. The Court has suggested that it should approach stare decisis differently in statutory areas from the way it approaches it when it reconsiders constitutional decisions. I think that that is wrong and that the Court should apply its approach to stare decisis in constitutional cases to cases based on statutes, such as the Sherman Act. Second, I focus on the evil of evils: horizontal price-fixing. I don’t think that the Court is likely to retire the per se rule against horizontal price-fixing, certainly not directly. We might only realize that it had been overturned after the fact, after the Court had so chipped away at the doctrine that nothing remained. That said, as again Leegin itself suggested, we can’t be fully confident that horizontal price-fixing is always pernicious, especially when it might be implemented as part of a larger vertical arrangement.