COMPETITION LAW AS COMMON LAW: "AMERICAN EXPRESS" AND THE EVOLUTION OF ANTITRUST

We explore the implications of the widely accepted understanding that competition law is common—or "judge-made"—law. Specifically, we ask how the rule of reason in antitrust law should be shaped and implemented, not just to guide correct application of existing law to the facts of a case,...

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Bibliographic Details
Published inUniversity of Pennsylvania law review Vol. 168; no. 7; pp. 2061 - 2106
Main Authors Katz, Michael L., Melamed, A. Douglas
Format Journal Article
LanguageEnglish
Published Philadelphia students of the University of Pennsylvania Law School 01.06.2020
University of Pennsylvania, Law School
University of Pennsylvania Law School
Subjects
Antitrust
Antitrust law
Antitrust laws
Competition
Competition policy
Evaluation
Judge-made law
Rule of reason
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Summary:We explore the implications of the widely accepted understanding that competition law is common—or "judge-made"—law. Specifically, we ask how the rule of reason in antitrust law should be shaped and implemented, not just to guide correct application of existing law to the facts of a case, but also to enable courts to participate constructively in the common law-like evolution of antitrust law in the light of changes in economic learning and business and judicial experience. We explore these issues in the context of a recently decided case, Ohio v. American Express, and conclude that the Supreme Court, not only made several substantive errors, but also did not apply the rule of reason in a way that enabled an effective common law-like evolution of antitrust law.
ISSN:0041-9907
1942-8537