Is it Concerted Action under Section 1 of the Sherman Act when a CEO Conspires with his Alternate Online Persona?

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:

Take Two: Stare Decisis in Antitrust - The Per Se Rule Against Horizontal Price-Fixing

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.

Comments

[Uzair Kayani]

Hi Professor Picker,

This brings back memories. I have two queries:

First, re stare decisis in constitutional versus statutory interpretation you note:

"For constitutional issues, Congress is disabled from acting by institutional design, as we have assigned the role of constitutional interpreter to the Court. In [statutory] cases, Congress is disabled from acting not by design but because of internal disagreement [between the House and Senate over whether the Court's decision was good.]"

You suggest that Congress is just as disabled in overturning the Court's statutory interpretations as in overturning constitutional ones.

But it appears the two checks are incomparable. In either case, Congress would correct the Court through an amendment. Constitutional amendments are far more difficult to pass than statutory ones. Suppose Roe v Wade or Brandenburg v Ohio were based on statute. They may not have survived. Accordingly, when a Court says that Congress can change a statute, I take it seriously, but when judges say we should amend the Fourteenth Amendment all the time, I assume they are joking. The same reasons that counsel for constitutional minimalism surely counsel for stronger stare decisis in constitutional cases as well- the changes are less reversible and potentially mroe disruptive.

Second, re Interstate Circuit, I was happy to review the pies. For me, the puzzle is how to draw the line between movie theaters and other secondary markets. Suppose everyone is a graduate student, and no one believes in buying a new car. If everyone buys second hand cars, all carmakers either (1) go out of business, or (2) lower the price of their cars. Similarly, if everyone goes to second run theaters, movie producers and first run theaters either (1) go out of business, or (2) lower the budgets for their movies. Competitive pressure seems to require this. Would we really allow vertical agreements across the board where carmakers forced used car salesmen to set minimum prices? The pie logic would still work there.

Is the distinction that controlling secondary markets in cars is impossible? Perhaps we don't see such agreements because they cannot be enforced. But if that were true, we would see car manufacturers lobbying the government to regulate used car makers. Which, I suppose, they do. Hm.

[Uzair Kayani]

Woops. I was wrong. I think you meant we have *weaker* stare decisis in Constitutional cases than in statutory ones.

But Justices have expressed a desire to strengthen constitutional stare decisis by suggesting the idea of "super precedents," and through Justice Roberts's minimalism. I guess the jury is out on whether constitutional precedents are weaker or stronger now than ten years ago.

[Joan A. Conway]

Constitutional precedents are liquid and shift depending on the balance of power within the Supreme Court. And in addition, they have always been held to political sway depending upon the leadership and control of the highest court. The weaker or stronger argument doesn't matter. What matters is the direction the controlling justices wish to take the Constitution to address the pressure from new economic forces upon the old economic forces. The justices protect their biases, and their sponsor's biases as a general rule of thumb. These Supremes are often viewed as a "joke" by Radio's Mark Levin, a Constitutional Lawyer, of the radio fame: "Get off the air you dummy!" Or his similiar comments to impose his will and interpretation on a given subject.

Quoting some young redheaded male I knew in 1959, in response to the powers that be at the Peoples Gas Company, he said, "Ours is not to rule and decide; ours is but to live or die." And the same probably holds true today after that firm drastically changed its business plan.

We are mere mortals, and the God-like Supremes are less-than-compensating with their rulings to accommodate all of our endeavors to be immortals too. Although we are not considered subjects we live under a capitalistic system and are subject to it, if not our government.

[LAK]

How is it possible that not one faculty member at the school of laissez faire theory has made a comment on the housing crisis and the bail out of Bear Stearns???

[corbett]

Agreed, but as long as there is no conspiracy to be involved in, no crime has been broken