Extraneous Liability in Antitrust
Alan J. Devlin
Latham & Watkins
March 6, 2011
Arizona Law Review, Vol. 53, p. 781, 2011
Whether an act gives rise to liability should turn on its tendency to yield particular outcomes, rather than on its ultimate effect, which may have resulted from extraneous factors beyond the actor’s control and foresight. This principle is firmly engrained in jurisprudence, yet antitrust violates this principle in a number of unappreciated ways. The law judges commercial conduct based not on the nature of the challenged behavior to bring about particular results, but on the stochastic confluence of extraneous factors. This Article explores the phenomenon of extraneous liability, finding fault with several important features of the modern antitrust system. Nevertheless, the paper accepts a legitimate role for extraneous factors in antitrust analysis. To the extent that such forces are both reasonably identifiable and at least somewhat determinate ex ante, they may appropriately affect the legality of conduct the future commercial impact of which depends on those forces.
Number of Pages in PDF File: 45Accepted Paper Series
Date posted: March 6, 2011 ; Last revised: September 8, 2011
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