Abstract
Gavil and Salop claim that the Chicago School’s “conservative critique of antitrust law” has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct. The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School’s baneful influence. In suggesting these reforms, they hope sometimes to alter the parties’ respective burdens of production and the manner of satisfying such burdens.
This essay focuses on Gavil and Salop’s embrace of a so-called “sliding scale” approach to rule of reason analysis.
[...]
Part I of this essay discusses the distinction and interaction between perse and rule-of-reason analysis. Part II describes the methodology of modern rule of reason analysis, developed by the late Professor Phillip Areeda at Harvard Law School. Part III describes the Chicago School’s failed attempt to amend the Areeda framework to require additional proof of anticompetitive conduct, including proof that defendants possess high market shares in a properly-defined relevant market. Part IV explains how application of Professor Areeda’s framework has almost led to de facto legality for restraints that survive per se condemnation, inspiring proposals to relax the requirements for establishing a prima facie case. Part V critiques Gavil and Salop’s version of the sliding-scale approach, and in particular their support for and invocation of quick look analysis. Part VI explains how the Areeda rule-of-reason methodology is in fact biased against certain exclusionary agreements, particularly those that avoid per se condemnation because they may overcome a market failure.
This abstract has been taken from the author's introduction.
Document Type
Article
Publication Date
2025
Publication Information
173 University of Pennsylvania Law Review Online 1-32 (2025)
Repository Citation
Meese, Alan J., "Against the Sliding Scale" (2025). Faculty Publications. 2255.
https://scholarship.law.wm.edu/facpubs/2255
