And Should I Then Presume?: A Response to Carrier and Tushnet’s An Antitrust Framework for False Advertising

108 Iowa L. Rev. Online 22-35.

Minnesota Legal Studies Research Paper No. 22-09

14 Pages Posted: 28 Jul 2022 Last revised: 14 Feb 2023

See all articles by Thomas F. Cotter

Thomas F. Cotter

University of Minnesota Law School

Date Written: June 24, 2022

Abstract

Michael Carrier and Rebecca Tushnet’s article An Antitrust Framework for False Advertising, 106 Iowa L. Rev. 1841 (2021), makes a convincing case that a “categorical immunity” approach, under which false advertising can never serve as the basis for a monopolization or attempted monopolization claim under § 2 of the Sherman Act, is unwarranted; and that an alternative approach, under which courts apply a rebuttable presumption that false advertising is insufficiently exclusionary to contribute to the willful acquisition or maintenance of monopoly power, is similarly unsound. Carrier and Tushnet’s further argument, that rather than simply applying a case-by-case approach courts should adopt a rebuttable presumption of antitrust liability whenever a monopolist engages in false advertising, is sometimes less convincing, though I suspect that in practice such a presumption would only rarely be outcome-determinative.

Keywords: antitrust, false advertising, monopolization

Suggested Citation

Cotter, Thomas F., And Should I Then Presume?: A Response to Carrier and Tushnet’s An Antitrust Framework for False Advertising (June 24, 2022). 108 Iowa L. Rev. Online 22-35., Minnesota Legal Studies Research Paper No. 22-09, Available at SSRN: https://ssrn.com/abstract=4145778

Thomas F. Cotter (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-7527 (Phone)

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