The Supreme Court Should Grant Certiorari in FTC v. McWane

62 Pages Posted: 24 Dec 2015 Last revised: 6 Jan 2016

See all articles by Joshua D. Wright

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Date Written: December 21, 2015

Abstract

Exclusive dealing is the last vestige of the pre-economic era of antitrust. And it shows. The Supreme Court’s decision in GTE Sylvania nearly 40 years ago was the turning point for the evolution of modern antitrust law in the United States because it made clear “that the analysis of economic effects provided the proper basis for evaluating conduct under the antitrust laws.” In the area of vertical restraints in particular, the critical lesson that has emerged from the economic revolution in antitrust law has been that such conduct must not be condemned without economic evidence of harm to competition. The Supreme Court should grant certiorari in FTC v. McWane because, unfortunately, it is a vivid demonstration of the fact that exclusive dealing law remains untouched by the intellectual revolution in antitrust doctrine since the Supreme Court’s decision in GTE Sylvania. The Federal Trade Commission’s analysis in FTC v. McWane, and thus the Eleventh Circuit opinion, are not only in significant tension with the modern antitrust approach to vertical restraints, they reject it altogether. McWane presents a unique and timely opportunity for the Supreme Court to bring exclusive dealing law in line with modern antitrust law and economic analysis, to recalibrate the doctrine to focus on harm to competition, and to provide guidance to lower courts with respect to the application of rule of reason analysis in cases involving exclusive dealing arrangements.

Keywords: McWane, antitrust, exclusive dealing, loyalty discounts, Microsoft, exclusion, Federal Trade Commission, monopolization, predatory pricing, economics

JEL Classification: L12, L22, K21, A11

Suggested Citation

Wright, Joshua D., The Supreme Court Should Grant Certiorari in FTC v. McWane (December 21, 2015). George Mason Law & Economics Research Paper No. 15-57. Available at SSRN: https://ssrn.com/abstract=2706859 or http://dx.doi.org/10.2139/ssrn.2706859

Joshua D. Wright (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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