Evolving the Rule of Reason for Legacy Business Conduct

CPI Antitrust Chronicle, January 2024

George Mason Law & Economics Research Paper No. 24-02

8 Pages Posted: 7 Feb 2024

See all articles by John M. Yun

John M. Yun

George Mason University - Antonin Scalia Law School

Date Written: February 6, 2024

Abstract

In administering the antitrust laws, is it relevant what a firm’s market power was when a business practice was first implemented? Relatedly, should the commonness of a practice — in terms of use by other firms in a market or industry — be a consideration when assessing its legality? This article proposes that, under certain, well-specified conditions, the legacy of a business practice and its commonness within a market can be used as a “marginally procompetitive presumption” under the rule of reason framework. Specifically, if a practice was implemented before a firm obtained substantial market power or a practice is commonly used by other firms across the market power spectrum, then the burden placed on defendants to demonstrate the practice is procompetitive should be lessened in proportion to the strength of the legacy and commonality.

Keywords: Antitrust, Sherman Act, rule of reason, presumptions, business practices, efficiencies, procompetitive effects, Ohio v. American Express, FTC v. Qualcomm

JEL Classification: K2, K20, K21, K23, K29

Suggested Citation

Yun, John M., Evolving the Rule of Reason for Legacy Business Conduct (February 6, 2024). CPI Antitrust Chronicle, January 2024, George Mason Law & Economics Research Paper No. 24-02, Available at SSRN: https://ssrn.com/abstract=4718840 or http://dx.doi.org/10.2139/ssrn.4718840

John M. Yun (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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