Supreme Court of the United States Commons^™

Less Restrictive Alternatives And The Ancillary Restraints Doctrine, Thomas B. Nachbar

Seattle University Law Review

In Ohio v. American Express, both the majority and dissent introduced into Supreme Court antitrust jurisprudence a new test for evaluating restraints under the rule of reason: a less restrictive alternatives test. Occasionally appearing in circuit court cases, less restrictive alternatives tests have not been part of Supreme Court’s approach to the rule of reason, which generally evaluates restraints of trade by balancing their anticompetitive and procompetitive effects.

American Express was the first Supreme Court case to mention a less restrictive alternatives test, potentially representing a major shift in antitrust law, but it was not the last. In 2021’s …

Antitrust Changeup: How A Single Antitrust Reform Could Be A Home Run For Minor League Baseball Players, Jeremy Ulm

Dickinson Law Review (2017-Present)

In 1890, Congress passed the Sherman Antitrust Act to protect competition in the marketplace. Federal antitrust law has developed to prevent businesses from exerting unfair power on their employees and customers. Specifically, the Sherman Act prevents competitors from reaching unreasonable agreements amongst themselves and from monopolizing markets. However, not all industries have these protections.

Historically, federal antitrust law has not governed the “Business of Baseball.” The Supreme Court had the opportunity to apply antitrust law to baseball in Federal Baseball Club, Incorporated v. National League of Professional Baseball Clubs; however, the Court held that the Business of Baseball was not …

A Neo-Chicago Perspective On Antitrust Institutions, Daniel A. Crane

Articles

It has long been fashionable to categorize antitrust by its "schools." From the Sherman Act's passage to World War II, there were (at least) neo-classical marginalism, populism, progressivism, associationalism, business commonwealthism, and Brandeisianism. From World War II to the present, we have seen (at least, and without counting the European Ordo-Liberals) PaleoHarvard structuralism, the Chicago School, Neo-Harvard institutionalism, and Post -Chicagoans. So why not Neo-Chicago? I am already on record as suggesting the possible emergence of such a school, so it is too late for me to dismiss the entire "schools" conversation as window-dressing. This Symposium is dedicated to defining …

Antitrust's "Jurisdictional" Reach Abroad, Herbert J. Hovenkamp

All Faculty Scholarship

In its Arbaugh decision the Supreme Court insisted that a federal statute’s limitation on reach be regarded as “jurisdictional” only if the legislature was clear that this is what it had in mind. The Foreign Trade Antitrust Improvement Act (FTAIA) presents a puzzle in this regard, because Congress seems to have been quite clear about what it had in mind; it simply failed to use the correct set of buzzwords in the statute itself, and well before Arbaugh assessed this requirement.

Even if the FTAIA is to be regarded as non-jurisdictional, the constitutional extraterritorial reach of the Sherman Act is …

Secondary Boycott: From Antitrust To Labor Relations, Theodore J. St. Antoine

Articles

The ethos of the labor movement cuts against the American grain at several points. Our national instinct, reflected in many statutes and much judge-made law, is to exalt the rugged individualist over the anonymous group, to favor wide-open competition rather than a controlled market, and to prize the right of each person to remain aloof from the quarrels and concerns of his neighbors. It is not for nothing that our most universal folk hero is the frontiersman, who proudly stands alone and self-sufficient. Yet the ordinary workingman does not have the capacity to assume that heroic stance. For him strength …