Peter Carstensen, Look At What Courts Do, Not What They Say, The Sling Feb. 22, 2025, https://www.thesling.org/look-at-what-courts-do-not-what-they-say/.
Abstract
Frequent efforts to simplify antitrust doctrine flounder on the ambiguity and inconsistency of the decided cases. The thesis of this paper is that it is possible to simplify antitrust by focusing on what courts do in response to the facts that they observe. For example, in restraint of trade cases the key fact issue is whether or not the restraint is ancillarity to a legitimate venture or transaction between or among the parties. If there was no venture or transaction, the restraint was naked and, in most circumstances, would be illegal regardless of any putative benefits. If it is ancillary, the court is likely to presume its legality. A similar examination of what courts do in response to mergers among substantial competitors shows that there is a presumption of illegality even if its boundaries are somewhat ambiguous. Examining what courts do and not what they say is the key to simplifying and making antitrust more intelligible.
