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Baker, Jonathan B. --- "Apreface to Post-Chicago Antitrust" [2002] ELECD 89; in Cucinotta, Antonio; Pardolesi, Roberto; Van den Bergh, J. Roger (eds), "Post-Chicago Developments in Antitrust Law" (Edward Elgar Publishing, 2002)

Book Title: Post-Chicago Developments in Antitrust Law

Editor(s): Cucinotta, Antonio; Pardolesi, Roberto; Van den Bergh, J. Roger

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781843760016

Section: Chapter 3

Section Title: Apreface to Post-Chicago Antitrust

Author(s): Baker, Jonathan B.

Number of pages: 16

Extract:

3. A preface to post-Chicago antitrust
Jonathan B. Baker1
The US antitrust laws are written in general terms. The primary antitrust
statutes provide little guidance to firms trying to comply with them or to courts
attempting to interpret them. To paraphrase their main substantive provisions,
the Sherman Act bars agreements in restraints of trade (§1) and monopoliza-
tion (or its attempt) (§2); the Federal Trade Commission (FTC) Act §5
prohibits unfair practices; and Clayton Act §7 objects to acquisitions likely to
lessen competition substantially or to tend to create a monopoly. In conse-
quence, these statutes sometimes appear to resemble a social Rorschach test,
on which courts and commentators can project a variety of perspectives and
goals.
To be sure, the federal courts have implemented these broad statutory
mandates through the creation of more specific doctrinal rules that shape the
analysis of the range of business conduct reviewed under the competition
laws. After a century of judicial elaboration, the familiar categories include
horizontal agreements concerning price, group boycotts, resale price mainte-
nance, exclusive distribution territories, predatory pricing and many others.
Yet the doctrinal rules themselves, established through statutory interpretation,
evolve much as does a common law field ­ through judicial elaboration on a
case-by-case basis.
Three broad eras of antitrust interpretation can be discerned through the
judicial response to the statutory inkblots: a classical era around the end of the
nineteenth century, a structural era around the middle of the twentieth century,
and a Chicago School perspective characterizing ...