Justice Stevens and Market Relationships in Antitrust

22 Pages Posted: 9 Jun 2019

Date Written: 2006


Justice John Paul Stevens practiced antitrust law before his appointment to the Supreme Court of the United States. He also taught antitrust and served on commissions studying the antitrust laws. He therefore had experience in both the practicalities and the problems of antitrust law. This experience has served him well on the Court, where Justice Stevens has written majority opinions in numerous important cases and dissented in others.

This Article argues that in these opinions Justice Stevens can be read to have developed a distinctive approach to antitrust analysis. His approach focuses particularly on the relationships between the several markets involved in most antitrust cases, maintaining this focus even in cases involving monopolization and horizontal restraints, which are often viewed as involving only single markets. Thus, at least as read here, Justice Stevens adopts a consistent approach in a variety of cases, and his approach emphasizes an aspect of anticompetitive conduct common to all those cases.

The specific issue with which Justice Stevens appears to be concerned is conduct in one market that does not make economic sense in that market but instead is aimed at gaining power in a second market. Although Justice Stevens does not explicitly present this issue as occupying the central role given it by this Article, his opinions consistently emphasize market relationships of that kind. This Article goes beyond Justice Stevens's opinions, however, in advocating that this emphasis on market relationships serve as a general test for antitrust legality.

The first section of the Article discusses briefly the development of antitrust's current focus on market relationships, both in law and economics. The subsequent portion of the Article discusses Justice Stevens's emphasis on market relationships and the particular inquiries he has applied in evaluating anticompetitive conduct. The final section of the Article compares a test for antitrust legality based on market relationships with three other approaches to providing structure to antitrust analysis: the per se rule/rule of reason dichotomy, the ancillary-restraint test, and the use of a market-power screen.

Suggested Citation

Patterson, Mark R., Justice Stevens and Market Relationships in Antitrust (2006). Fordham Law Review, Vol. 74, No. 4, 2006; Fordham Law Legal Studies Research Paper No. 3400148. Available at SSRN: https://ssrn.com/abstract=3400148

Mark R. Patterson (Contact Author)

Fordham University School of Law ( email )

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