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Toward a Unified Theory of Exclusionary Vertical Restraints

45 Pages Posted: 7 Oct 2010 Last revised: 22 Dec 2013

Daniel A. Crane

University of Michigan Law School

Graciela Miralles

European University Institute - Department of Law (LAW)

Date Written: October 7, 2010

Abstract

The law of exclusionary vertical restraints - contractual or other business relationships between vertically related firms - is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices including predatory pricing, tying, exclusive dealing, price discrimination, and bundling are treated very differently based on formalistic distinctions that bear no relationship to the practices’ exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors, foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make a sale or purchase (depending on whether the restraint affects access to customers or inputs). Market foreclosure is substantial if it denies rivals a reasonable opportunity to reach minimum viable scale. Where substantial foreclosure is shown, the restraint should generally be declared illegal unless it is justified by efficiencies that exceed the restraint’s anticompetitive effects.

Keywords: European Union, vertical restraints, substantial foreclosure

JEL Classification: K21

Suggested Citation

Crane, Daniel A. and Miralles, Graciela, Toward a Unified Theory of Exclusionary Vertical Restraints (October 7, 2010). Southern California Law Review, Forthcoming; U of Michigan Law & Econ, Empirical Legal Studies Center Paper No. 10-023; U of Michigan Public Law Working Paper No. 218. Available at SSRN: https://ssrn.com/abstract=1689068

Daniel Crane (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-615-2622 (Phone)

Graciela Miralles

European University Institute - Department of Law (LAW) ( email )

Via Boccaccio 121 (Villa Schifanoia)
I-50122 Firenze
ITALY

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