Sailing a Sea of Doubt: A Critique of the Rule of Reason in U.S. Antitrust Law

by Jesse W. Markham, Jr.

Marshall P. Madison Professor of Law

University of San Francisco School of Law

Abstract:

Competitive restraints challenged under Section 1 of the Sherman Act are evaluated under either the rule of reason or, for a small and diminishing group of restraints, under per se rules.  The role for per se rules has diminished in recent years as courts have retreated from them out of concern that their rigid application can condemn desirable competitive conduct.  Now, the rule of reason is the default mode of analysis applicable to nearly all categories of alleged competitive restraints.  During the same period in which the Supreme Court expanded the reach of the rule of reason, it also rendered it devoid of the little guiding content that it previously had.  Thus, one hundred years after the rule of reason was first announced in Standard Oil Co. v. United States, 221 U.S. 1, 60 (1911), the rule has been rendered essentially devoid of any meaningful content.

This article traces the disintegration of the rule of reason and argues for a restoration of categorical modes of analysis for claims brought under Section 1.  From its inception, the rule of reason has called for a dangerously open-ended inquiry.  However, in an earlier era, certain specific and familiar categories of conduct were condemned per se, which gave Section 1 a region of clarity.  In California Dental Ass’n v. Federal Trade Comm’n, 526 U.S. 756, 781 (1999), the Supreme Court obliterated the line between per se and rule of reason analysis, and abandoned categorical antitrust analysis almost entirely.  The overall result is that the rule of reason now governs nearly all Section 1 claims, but its meaning is substantially less clear now than it was 100 years ago.  A set of presumptions about the lawfulness of restraints is needed to guide courts and businesses in the evaluation of restraints under Section 1.

Long-term natural gas contracts and antitrust law in the European Union and the United States

Long-term natural gas contracts and antitrust law in the European Union and the United States.

Kim Talus

Lecturer in International Energy and Resources Law at the UCL School of Energy and Resources, Australia. Member of the CoE Foundations of European Law and Polity. Editor-in-Chief for Oil, Gas and Energy Law Intelligence (www.ogel.org).

Abstract

Long-term natural gas contracts and their specific features are at the forefront of legal and policy discussions around the world. Issues like oil price indexation and price reviews, flexibility and take-or-pay clauses or a move to shorter term trading are being debated. This is particularly true for Europe where major changes are taking place, but also in places like Australia and Asia.

This study will focus on the antitrust treatment of long-term take-or-pay natural gas contracts and their specific provisions in the European Union and the United States. It will also examine the regulatory treatment of these contracts and the regulatory environment in which these contracts operate. Issues that are covered include questions on duration and volumes, take-or-pay provisions and oil indexation, destination or use restrictions, vertical integration and monopolization.

Negociación colectiva, Derecho de la competencia y libertades de circulación en la Unión Europea

Guamán Hernández, Adoración

Revista del Ministerio de Trabajo y Asuntos Sociales, 2011 (92) pp.143-189- ISSN: 1137-5868

Resumen

Fuente: Compludoc – Biblioteca de la Universidad Complutense de Madrid.

Revista Jurídica Online | Facultad de Jurisprudencia y Ciencias Sociales y Políticas | Universidad Católica de Guayaquil – Ecuador

Revista Jurídica Online | Facultad de Jurisprudencia y Ciencias Sociales y Políticas | Universidad Católica de Guayaquil – Ecuador.