Antitrust 1 Prof. E. Fox Fall 2004 1 I. Introduction to Antitrust Law 4 a. General Background 4


Early Conceptions of Antitrust Law



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Early Conceptions of Antitrust Law

  1. U.S. v. Trans-Missouri Freight Association (J. Peckham, 1897) – Scope of the Sherman Act


  • NOTE: under the common law, partial restraints were OK as long as they were reasonable

  • Issues and Holdings:

  • What does “every contract, combination in restraint of trade” mean under the Sherman Act?

  • All contracts in NAKED RESTRAINT of trade are covered by the Sherman Act (restraints at issue are not ancillary, which are permissible); interprets Sherman Act outside common law

  • Intent d/n matter!

  • What is meant by “reasonableness”?

  • Reasonableness is not an element of the analysis b/c it is difficult to define  Per Se Rule

  • Subjectivity of determining reasonableness in fixing prices cannot be left to competitors; the market must be free of collusion so that a reasonable price is reach by market forces

  • Is there a defense of “ruinous competition”?

  • Dissent (J. White)

  • Law s/n provide a blanket prohibition; Rule of Reason first articulated  freedom to contract and freedom of trade may be compromised by not considering the issue of reasonableness

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