The Use of Business Theory in Antitrust Litigation

Abstract

Antitrust has been impoverished as a discipline by systematically devaluing business discourse in favor of a nearly exclusive reliance on one form of economics as its guiding discipline. I have previously discussed elsewhere the historical reasons why antitrust has ignored the theories that motivate the very decision makers whose behavior antitrust seeks to motivate. See Spencer Weber Waller, The Language of Law and the Language of Business, 52 Case. W. L. Rev. 283 (2001), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=253732&high=%20spencer%20waller.

In this paper, I discuss how business theory is becoming an increasingly valuable tool for antitrust analysis. I primarily analyze two recent cases. In the first case, Conwood Tobacco, a knowledge of modern marketing is necessary to understand the facts and legal liability at issue. In the second case, LePage's, business theory would have provided both plaintiffs and defendants in a controversial bundling case with better tools to argue their position. Finally, I conclude with a briefer look at a series of other cases where business theory issues have been raised and would have been a valuable addition to the standard tools of antitrust analysis.

Keywords: antitrust, business theory, law and economics, marketing, bundling, antitrust litigation

JEL Classification: K21, A12, L40