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Developments In Merger Litigation: The Government Doesn't Always Win, Stephen Calkins
Developments In Merger Litigation: The Government Doesn't Always Win, Stephen Calkins
Law Faculty Research Publications
"The sole consistency that I can find is that under Section 7, the Government always wins." When this famous antitrust apothegm was pronounced in 1966 by Justice Stewart, dissenting in United States v. Von's Grocery, it had the ring of truth. It is less true today: of the (admittedly few) reported Justice Department merger cases decided since William Baxter assumed responsibility as Assistant Attorney General, the Government has lost all but one. The Federal Trade Commission's court record in merger cases has been substantially better. Even in private cases, usually involving challenges to mergers to which the federal antitrust …
Developments In Antitrust And The First Amendment: The Disaggregation Of Noerr, Stephen Calkins
Developments In Antitrust And The First Amendment: The Disaggregation Of Noerr, Stephen Calkins
Law Faculty Research Publications
A legal doctrine conceived in ambiguity seldom achieves clarity with the passage of time. Such had been the experience with the Noerr-Penningon doctrine, the principal focus of this article. In its first Noerr-Pennington decision in 16 years, Allied Tube & Conduit Corp. v. Indian Head, Inc., the Supreme Court created new uncertainties. However, it also offered hope for resolution of some of the inconsistencies that have plagued the doctrine. It did this by distinguishing sharply between harm caused directly by petitioning activity (for which petitioners may be liable), and harm caused by requested government action (for which petitioners may …