A New Structured Rule of Reason Approach for High-Tech Markets

29 Pages Posted: 4 Feb 2017

See all articles by Thibault Schrepel

Thibault Schrepel

Vrije Universiteit Amsterdam; Stanford University's Codex Center; University Paris 1 Panthéon-Sorbonne; Institut d'Etudes Politiques de Paris (Sciences Po)

Date Written: February 2, 2017


Applying the per se illegality doctrine for years has proven to be a mistake. The challenge is now to avoid committing the same error by applying per se legality for practices related to the New Economy — notably predatory innovation. This Article then advocates for eliminating per se legality as it relates to innovation issues that stem from ideologies rather than particular facts.

Avoiding general per se rules does not mean, however, that we should apply a general rule of reason. Frank H. Easterbrook’s findings demonstrate how filters can create an efficient error-cost framework, but his findings are not well suited for the practices related to the New Economy. This Article proposes implementing a newly structured rule of reason tailored for innovation issues and based on three filters that will suit contemporary antitrust law issues and would considerably improve antitrust law and economic analysis in the long run, while also avoiding false positives.

Keywords: Rule of Reason, per se Rules, Innovation, Antitrust, Estearbrook, Structure Rule of Reason

JEL Classification: K21

Suggested Citation

Schrepel, Thibault, A New Structured Rule of Reason Approach for High-Tech Markets (February 2, 2017). Suffolk University Law Review, Vol. 50, No. 1, 2017, Available at SSRN: https://ssrn.com/abstract=2908838

Thibault Schrepel (Contact Author)

Vrije Universiteit Amsterdam ( email )

De Boelelaan 1105
1081 HV Amsterdam

Stanford University's Codex Center ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

University Paris 1 Panthéon-Sorbonne ( email )


Institut d'Etudes Politiques de Paris (Sciences Po) ( email )

27 rue Saint-Guillaume
Paris Cedex 07, 75337

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