The Meaning of Vertical Agreement and the Structure of Competition Law

Antitrust Law Journal (2016) Forthcoming

Harvard John M. Olin Discussion Paper No. 860

58 Pages Posted: 11 May 2016

See all articles by Louis Kaplow

Louis Kaplow

Harvard Law School; National Bureau of Economic Research (NBER)

Date Written: May 2016

Abstract

Competition law’s vertical agreement requirement is widely regarded to be perplexing and to offer a fairly limited unilateral action defense. These views prove to be understated. The underlying distinction is incoherent on a number of levels and difficult to reconcile with pertinent statutes, precedent, and practice. The requirement has little nexus with competition policy, and its satisfaction may even be associated with less, not more, anticompetitive danger. Furthermore, reflection on the thinness or nonexistence of the vertical agreement requirement renders problematic a central feature of competition law: the aim to subject myriad everyday actions of countless firms to more lenient scrutiny than that applicable to agreements, which on reflection are ever-present.

Keywords: Vertical Agreement, Conspiracy, Unilateral Action, Competition, Monopoly, Antitrust

JEL Classification: K21, L14, L42

Suggested Citation

Kaplow, Louis, The Meaning of Vertical Agreement and the Structure of Competition Law (May 2016). Harvard John M. Olin Discussion Paper No. 860. Available at SSRN: https://ssrn.com/abstract=2777608

Louis Kaplow (Contact Author)

Harvard Law School ( email )

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HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=32&show=bibliography

National Bureau of Economic Research (NBER)

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Cambridge, MA 02138
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