Tying: The Poster Child for Antitrust Modernization

26 Pages Posted: 5 Dec 2005

See all articles by David S. Evans

David S. Evans

Global Economics Group; University College London

Date Written: November 2005

Abstract

U.S. antitrust law has made enormous strides in the last twenty years towards becoming intellectually coherent and based on sound economic analysis. Economic analysis now has a preeminent place in evaluating and bringing cases, among enforcement agencies and in the courts. There is no serious debate that unilateral practices should be subjected to a per se test rather than a rule of reason analysis. Likewise, there is no debate among economists or legal scholars that tying should be removed from the genus of unilateral practices and placed in its own leper colony.

The time has therefore come to abandon the per se label and refocus the inquiry on the adverse economic effects, and the potential economic benefits, that the tie may have. The law of tie-ins will thus be brought into accord with the law applicable to all other allegedly anticompetitive economic arrangements, except those few horizontal or quasi-horizontal restraints that can be said to have no economic justification whatsoever. This change will rationalize rather than abandon tie - in doctrine as it is already applied. Modern antitrust analysis does not support the per se condemnation of tying or the Jefferson Parish test. Neither should modern antitrust law.

Suggested Citation

Evans, David S., Tying: The Poster Child for Antitrust Modernization (November 2005). Available at SSRN: https://ssrn.com/abstract=863031 or http://dx.doi.org/10.2139/ssrn.863031

David S. Evans (Contact Author)

Global Economics Group ( email )

111 Devonshire St.
Suite 900
Boston, MA 02108
United States

University College London ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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