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The Evolution of Sherman Act Case Law: A Roadmap for Competitive Federalism


D. Bruce Johnsen


George Mason University - School of Law; PERC - Property and Environment Research Center

Moin A. Yahya


University of Alberta - Faculty of Law

November 2003

George Mason Law & Economics Research Paper No. 03-54

Abstract:     
For the first time in over six decades, recent Supreme Court decisions confirm that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for federal antitrust jurisdiction under the Sherman Act. It provides a clear and substantively reasoned jurisdictional test based on the concept of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. According to this test, to be subject to federal antitrust jurisdiction Sherman Act defendants must have a sufficiently large share of the geographic antitrust market that they can plausibly exercise market power that has a substantial effect on prices "in more states than one." This test reflects a natural progression in the evolution of Sherman Act and Commerce Clause jurisdiction. It resolves a number of troubling inconsistencies in the case law and also provides a useful roadmap for the direction the Court's general Commerce Clause jurisprudence might take in other areas of federal regulation.

Number of Pages in PDF File: 74

Keywords: competitive federalism, antitrust, legal evolution, geographic markets

JEL Classification: K21, K23, L11, L41, L43

working papers series


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Date posted: December 10, 2003  

Suggested Citation

Johnsen, D. Bruce and Yahya, Moin A., The Evolution of Sherman Act Case Law: A Roadmap for Competitive Federalism (November 2003). George Mason Law & Economics Research Paper No. 03-54. Available at SSRN: http://ssrn.com/abstract=469962 or http://dx.doi.org/10.2139/ssrn.469962

Contact Information

D. Bruce Johnsen (Contact Author)
George Mason University - School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8066 (Phone)
703-993-8088 (Fax)
PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Moin A. Yahya
University of Alberta - Faculty of Law ( email )
Edmonton, Alberta T6G 2H5
Canada
780-492-4445 (Phone)
780-492-4924 (Fax)
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