Lost in (Doctrinal) Translation: The Misleading Retelling of the Supreme Court's Antitrust Decisions on Restraints of Trade

33 Pages Posted: 10 Oct 2018

See all articles by Peter Carstensen

Peter Carstensen

University of Wisconsin Law School; American Antitrust Institute

Date Written: October 4, 2009

Abstract

For decades, the most popular quotation from literature in antitrust briefs came from the follow-up to Alice in Wonderland, Through the Looking-Glass'. “When I use a word ... it means just what I choose it to mean. . . . When I make a word do a lot of work like that, ... I always pay it extra.”* This is because the “rule of reason” as well as the “per se” rule are ambiguous concepts. Thus, United States v. Topco stands for the proposition that all horizontal agreements allocating customers or territories are “per se violations]” and for the proposition that restraints among competitors regarding territories and customers can be reasonable and lawful.

Keywords: antitrust, doctrinal history, restraints of trade, supreme court

JEL Classification: K10, K21

Suggested Citation

Carstensen, Peter C., Lost in (Doctrinal) Translation: The Misleading Retelling of the Supreme Court's Antitrust Decisions on Restraints of Trade (October 4, 2009). SMU Law Review, Vol. 62, 2009; Univ. of Wisconsin Legal Studies Research Paper No. 1453. Available at SSRN: https://ssrn.com/abstract=3260684 or http://dx.doi.org/10.2139/ssrn.3260684

Peter C. Carstensen (Contact Author)

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