Despite receiving thorough analytic treatment from the judiciary and academy, and notwithstanding its sophisticated doctrine, antitrust law remains dogged by a profound incongruity, for precisely what the law condemns remains elusive. Certainly, there is widespread agreement that the antitrust laws exist to promote some measure of efficiency. While this baseline serves as an adequate foundation for judging the legality of many business practices, it proves insufficient for some others. The Article seeks to inject much-needed specificity into the concept of “anticompetitive.” In doing so, it addresses the question of whether the Sherman Act is properly concerned with aggregate or consumer welfare. It explores the extent to which anticompetitive effect refers to more than an absence of competition. It considers how the law should treat conduct that results in price increases, but not demonstrable output restrictions. It explains how intertemporal effects complicate analysis and explores the implications of the paradoxical fact that “anticompetitive” conditions may be the sine qua non of long-run welfare. By highlighting the amorphous nature of antitrust’s most fundamental concept, and explaining how it can be clarified, the Article seeks to alleviate a significant shortcoming in the law.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]