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Full-Text Articles in Supreme Court of the United States
Prophylactic Merger Policy, Herbert J. Hovenkamp
Prophylactic Merger Policy, Herbert J. Hovenkamp
All Faculty Scholarship
An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there …
The Lottery Docket, Daniel Epps, William Ortman
The Lottery Docket, Daniel Epps, William Ortman
Law Faculty Research Publications
No abstract provided.
Beyond Brooke Group: Bringing Reality To The Law Of Predatory Pricing, C. Scott Hemphill, Philip J. Weiser
Beyond Brooke Group: Bringing Reality To The Law Of Predatory Pricing, C. Scott Hemphill, Philip J. Weiser
Publications
This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group decision. Brooke Group requires a plaintiff to show that the defendant set a price below cost and had a sufficient likelihood of recouping its investment in predation. This framework, which was adopted without any contested presentation of its merits, has endured despite its flaws. Beyond this framework, the Court opined in dicta that predation is implausible.
We identify points of flexibility within the Court’s framework that permit an empirically grounded evaluation of the predation claim. Under the price-cost test, a plaintiff …