Comment: “Anticompetitive Effect”

Anticompetitive Effect by Judge Cudahy and Mr. Devlin focuses on a critical issue in antitrust jurisprudence: whether anticompetitive effect should be evaluated under an “aggregate welfare approach to competition” or under a “consumer welfare” approach. What hangs in the balance is the future efficacy of both public and private enforcement. This Comment traces the history of antitrust jurisprudence, and, in particular, the trend since the mid-1970s of the original intended targets of antitrust regulation ascending to positions of authority and becoming, in essence, the regulators. This Comment argues that this history demonstrates that antitrust law has become an instrumentality for preserving the very concentrations of economic power the antitrust laws were enacted to prevent, remedy, and limit. This has occurred not only through radical changes in substantive antitrust law, supported by economically suspect, if not discredited, free market Chicago school dogma, but also through equally radical changes in procedural law, which have made enforcement litigation into an obstacle course for plaintiffs and considerably narrowed the federal courthouse doors. The choice between adopting the aggregate welfare approach or the consumer welfare approach in determining anticompetitive effect will have profound practical consequences in antitrust enforcement. Only by choosing the aggregate welfare approach, as Judge Cudahy and Mr. Devlin urge, is there a possibility of halting or reversing the historical trend and revitalizing antitrust enforcement.

:: View PDF

De Novo

  • 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.[1] 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[1]—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.[1] The Court overturned the D.C. [...]