The Rule of Reason: An Empirical Update for the 21st Century

Abstract

One of the most amorphous rules in antitrust is the rule of reason. One of the most important rules in antitrust is the rule of reason. One of the most misunderstood rules in antitrust is the rule of reason. Put together these three propositions and you have the making of real trouble.

A decade ago, I showed that the rule of reason is far less amorphous than commonly believed. After reviewing all 495 rule of reason cases from 1977 to 1999, I showed that courts actually followed a burden-shifting approach.

This article updates my 1999 study. It concludes that the burden-shifting trend has continued and, in fact, has increased. Courts dispose of 97% of cases at the first stage, on the grounds that there is no anticompetitive effect. They balance in only 2% of cases.

Given the trend in the case law, the burden-shifting framework is an important observation. The rule of reason is even more crucial today than it was a decade ago. Because analysis is migrating away from per se analysis and towards the rule of reason, an exploration of what courts actually do in applying the framework may prove useful.

This short symposium article begins in Part I with an explanation of my methodology. Part II then presents the results. After providing an overview of the conclusions, it explores the instances of balancing in detail. Part III concludes by synthesizing the approaches of many of the appellate courts.

Keywords: antitrust, rule of reason, balancing, anticompetitive effects, procompetitive justifications

JEL Classification: K21, L10, L41, L42