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Sailing A Sea Of Doubt: A Critique Of The Rule Of Reason In U.S. Antitrust Law, Jesse W. Markham Jr.
Sailing A Sea Of Doubt: A Critique Of The Rule Of Reason In U.S. Antitrust Law, Jesse W. Markham Jr.
Jesse Markham
The purpose of the article is to offer a critique of the rule of reason, tracing its disintegration from its original articulation 100 years ago in Standard Oil Co. v. United States, 221 U.S. 1, 60 (1911). The article then describes a construct for restoring transparency and content to the rule of reason. The rule of reason is the default standard for assessing restraints under the Sherman Act. The role for the rule of reason has expanded in recent years as the Supreme Court has reversed a number of per se rules, thus relegating additional categories of restraints to the …
Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The 'Too-Big-To-Fail' Phenomenon, Jesse Markham
Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The 'Too-Big-To-Fail' Phenomenon, Jesse Markham
Jesse Markham
This article explores the failure of antitrust law to prevent or intercede to remedy the catastrophic failures of large enterprises. Given the historic focus of antitrust on problems relating to the dangers of out-sized business enterprise, the failure of antitrust in this regard raises interesting questons about whether its mission has drifted from the law's original intent. The article explores the current relationship between antitrust rules and "bigness" and offers a modest proposal for reviving antitrust as a public policy tool that might help to address the too-big-to-fail phenomenon.