The Incredible Shrinking Antitrust Law and the Antitrust Gap

Abstract

Substantive antitrust law has dramatically shrunk. The shrinkage, which began in the 1970s with the transition from the Warren Court to the Burger and then Rehnquist Courts, has accelerated in the last decade. Much of the shrinkage has to do with the expansion of the rule of reason and its displacement of per se rules. The Supreme Court has gone so far as to state that it "presumptively" applies the rule of reason while per se illegality is limited to a "narrow category of activity." This article considers the impact of modem antitrust law on the gap that is the divide between Sections 1 and 2 of the Sherman Act first recognized in the 1919 United States v. Colgate & Co. decision and reaffirmed and more elaborately described by the Supreme Court in its 1984 Copperweld Corp. v. Independence Tube Corp. decision. Is the gap shrinking, shifting, or is there now perhaps an inverse gap whereby conduct now insufficient to prove a Section 1 violation might establish a Section 2 offense? The Copperweld Court itself recognized that "the size of any such gap is open to serious question." I thus hope in this Article to shed some light on the impact of antitrust law's continuing shrinkage on the antitrust gap and to suggest what that impact signifies for the future of antitrust.