Does the Rule of Reason Violate the Rule of Law?
Maurice E. Stucke
University of Tennessee College of Law; The Konkurrenz Group
September 12, 2008
UC Davis Law Review, Vol. 42, No. 5, 2009
In the past few years, the Supreme Court has been more active in deciding antitrust issues. The Court's choice of legal standards affects future market behavior and the incentives for individuals and organizations to engage in productive activity. Despite its increased activity, the Court never assesses the deficiencies of its rule-of-reason standard under rule-of-law principles. This assessment is critical. This article analyzes the standard's significant deficiencies, and how these deficiencies adversely affect antitrust enforcement and competition policy generally. Perfect compliance with rule-of-law ideals, however, may be unobtainable and undesirable, so the Article recommends several improvements to reorient the rule of reason closer to rule-of-law ideals.
Number of Pages in PDF File: 116
Keywords: Antitrust, Sherman Act, Law & Economics, Competition Policy
JEL Classification: K21, L40, L41, L42, L43
Date posted: September 15, 2008 ; Last revised: June 16, 2009