Does the Rule of Reason Violate the Rule of Law?

116 Pages Posted: 15 Sep 2008 Last revised: 16 Jun 2009

Maurice E. Stucke

University of Tennessee College of Law; The Konkurrenz Group

Date Written: September 12, 2008

Abstract

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.

Keywords: Antitrust, Sherman Act, Law & Economics, Competition Policy

JEL Classification: K21, L40, L41, L42, L43

Suggested Citation

Stucke, Maurice E., Does the Rule of Reason Violate the Rule of Law? (September 12, 2008). UC Davis Law Review, Vol. 42, No. 5, 2009. Available at SSRN: https://ssrn.com/abstract=1267359

Maurice E. Stucke (Contact Author)

University of Tennessee College of Law ( email )

1505 W. Cumberland Ave.
Knoxville, TN 37996
United States
865-974-9816 (Phone)

HOME PAGE: http://law.utk.edu/people/maurice-stucke/

The Konkurrenz Group ( email )

5335 Wisconsin Ave., NW
Suite 440
Washington, DC 20015
United States

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