Law Commons^™

Standards Ownership And Competition Policy, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust law is a blunt instrument for dealing with many claims of anticompetitive standard setting. Antitrust fact finders lack the sophistication to pass judgment on the substantive merits of a standard. In any event, antitrust is not a roving mandate to question bad standards. It requires an injury to competition, and whether the minimum conditions for competitive harm are present can often be determined without examining the substance of the standard itself.

When government involvement in standard setting is substantial antitrust challenges should generally be rejected. The petitioning process in a democratic system protects even bad legislative judgments from collateral …

The Law Of Exclusionary Pricing, Herbert J. Hovenkamp

All Faculty Scholarship

The success of the Areeda-Turner test for predatory pricing and the Supreme Court's adoption of demanding proof requirements in its 1993 Brooke Group decision have made it very difficult for plaintiffs to win conventional predatory pricing claims. While many challenges to exclusionary pricing continue to be made, the legal theory has evolved away from classical predation to a variety of other theories. These include challenges to quantity and market share discounts, single item and package discounts, and various purchasing practices, including slotting fees, overinvestment in fixed cost assets, and overbuying of variable cost inputs. Plaintiffs have enjoyed somewhat greater success …