Antitrust Law

B729 is taught by K. Dau-Schmidt, D. Knebel, S. Wallace

Antitrust laws . . . are the Magna Carta of free enterprise, and are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. Justice Thurgood Marshall, United States v. Topco Associates (U.S. 1972).

Congress enacted the antitrust laws for the benefit of competition, which is the heart of our national economy (Standard Oil v. FTC (U.S. 1951)), in an effort to ensure the lowest prices and highest quality of goods and services for consumers. But, as Judge Posner has observed, antitrust law as we know it is due largely to the courts; it has been judges who have made antitrust law out of the cryptic antiquated language of the Sherman Act, as later supplemented by the equally cryptic Clayton Act. And courts interpretation of antitrust law has been affected by political and economic considerations that have evolved over time. Antitrust law is enforced by federal agencies (U.S. D.O.J. Antitrust Division and Federal Trade Commission), state Attorneys General, and private plaintiffs who stand to earn treble damages from successful antitrust suits. Unusually, the same statute (the Sherman Act) is the basis for both criminal and civil prosecutions for a variety of illegal conduct among competitors, including horizontal and vertical price fixing agreements, territory or customer allocations, and tying arrangements. And a substantial amount of civil antitrust practice is devoted to analyzing the likely competitive effects of proposed mergers under the Clayton Act. Attorneys with business clients should be familiar with antitrust law to help clients avoid the often substantial penalties for violating the law, while attorneys representing consumers need to know how to use antitrust law on behalf of those clients. The course will seek to develop an understanding not only of the specific statutes, but of the legal and economic principles that underlie those rules so that practitioners, even if they do not concentrate their practices in this area, are able to identify and address possible antitrust issues.