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Extraneous Liability in Antitrust

45 Pages Posted: 6 Mar 2011 Last revised: 8 Sep 2011

Alan J. Devlin

Government of the United States of America - Federal Trade Commission

Date Written: March 6, 2011

Abstract

Whether an act gives rise to liability should turn on its tendency to yield particular outcomes, rather than on its ultimate effect, which may have resulted from extraneous factors beyond the actor’s control and foresight. This principle is firmly engrained in jurisprudence, yet antitrust violates this principle in a number of unappreciated ways. The law judges commercial conduct based not on the nature of the challenged behavior to bring about particular results, but on the stochastic confluence of extraneous factors. This Article explores the phenomenon of extraneous liability, finding fault with several important features of the modern antitrust system. Nevertheless, the paper accepts a legitimate role for extraneous factors in antitrust analysis. To the extent that such forces are both reasonably identifiable and at least somewhat determinate ex ante, they may appropriately affect the legality of conduct the future commercial impact of which depends on those forces.

Suggested Citation

Devlin, Alan J., Extraneous Liability in Antitrust (March 6, 2011). Arizona Law Review, Vol. 53, p. 781, 2011. Available at SSRN: https://ssrn.com/abstract=1779193

Alan James Devlin (Contact Author)

Government of the United States of America - Federal Trade Commission ( email )

600 Pennsylvania Ave., NW
Washington, DC 20580
United States

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