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Full-Text Articles in Legal History
The Rule Of Reason, Herbert J. Hovenkamp
The Rule Of Reason, Herbert J. Hovenkamp
All Faculty Scholarship
Antitrust’s rule of reason was born out of a thirty-year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.
This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up …
Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane
Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane
Articles
During both economic crises and wars, times of severe national anxiety, antitrust has taken a back seat to other political and regulatory objectives. Antitrust enforcement has often been a political luxury good, consumed only during periods of relative peace and prosperity. In 1890, the Sherman Act's adoption kicked off the era of national antitrust enforcement. Barely three years later, the panic of 1893 provided the first major test to the national appetite for antitrust enforcement. Perhaps 1893 should not be included in the story: antitrust was still young, and it was not even clear that the Sherman Act applied to …
Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp
Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp
All Faculty Scholarship
The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged threat to …