The Durability of Formalism in Antitrust

27 Pages Posted: 17 Jul 2015

Date Written: July 16, 2015

Abstract

Antitrust formalism consists of commitments to interpretations of the antitrust laws that require courts to discount and even disregard relevant competitive effects. The phenomenon is more known as the use of rigid rules resting on premises that are correct under some circumstances but not all. Examples of antitrust formalism include per se rules, the analysis of collusion, the interpretation of the distinction between horizontal and vertical restraints, the “direct-purchaser” doctrine, and Twombly’s pleading standard. Competition-law rules that downplay competitive effects appear to run afoul of the goals of antitrust and, as such, antitrust formalism is counterintuitive. Antitrust formalism, however, has been a fixture in antitrust policy to which both liberal and conservative antitrust experts — lawyers and economists — have contributed since Congress enacted the Sherman Act. One way to describe antitrust formalism is that many individuals believe that their beliefs should define the law and that, in every generation, some individuals have the power or ability to promote such beliefs. This Article explains the durability of formalism in antitrust law and policy through some of the key facets of the phenomenon.

Keywords: antitrust, formalism, presumptions

Suggested Citation

Orbach, Barak, The Durability of Formalism in Antitrust (July 16, 2015). 100 Iowa Law Review 2197 (2015); Arizona Legal Studies Discussion Paper No. 15-25. Available at SSRN: https://ssrn.com/abstract=2631901

Barak Orbach (Contact Author)

University of Arizona ( email )

1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)
520.858.0025 (Fax)

HOME PAGE: http://www.orbach.org

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