Singing Along: A Comment On Goldberg & Muris On the Three Tenors

Wright Joshua D
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Wright Joshua D: George Mason University School of Law

Review of Law & Economics, 2006, vol. 1, issue 3, 399-414

Abstract: Professors Goldberg vigorously attacks the merits of the "Three Tenors" decision while emphasizing the issue of whether the challenged restraint resides within the boundaries of the firm. Professor Muris responds that the Commission's analysis is correct as a matter of law and fact, and that Professor Goldberg's call for a market power screen for all horizontal restraints ignores the legal costs of rulemaking. I take a third view of the debate. While conceding that per se rule is properly applied to "naked restraints," I show that the Commission's analysis relies on an inappropriately narrow view of the ancillary restraints doctrine in order to justify application of the per se rule. In particular, the Commission's emphasis on the timing of the restraint as well as its hostility towards PolyGram's free rider defense are not supported as a matter of law. In any event, the facts of the Three Tenors do not support the Commission's conclusion that the moratorium agreement was not ancillary to the joint venture.

Date: 2006
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DOI: 10.2202/1555-5879.1017

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