Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust

Alan J. Meese

Journal of Competition Law and Economics, 2005, vol. 1, issue 1, 21-95

Abstract: Modern antitrust policy has a ‘love hate’ relationship with non-standard contracts that can overcome market failure. On the one hand, courts have abandoned various per se rules that once condemned such agreements outright, concluding that many non-standard contracts may produce benefits that are cognizable under the antitrust laws.1 The prospect of such benefits, it is said, compels courts to analyze these agreements under the Rule of Reason, under which the tribunal determines whether a given restraint enhances or destroys competition.2 At the same time, courts, scholars, and the enforcement agencies have embraced methods of rule of reason analysis that are unduly hostile to such agreements.3 In particular, courts and others are too quick to view such agreements and the market outcomes they produce as manifestations of market power. This article seeks to explain why these agreements are still the object of undue hostility.

Date: 2005
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Journal of Competition Law and Economics is currently edited by Nicholas Economides, Amelia Fletcher, Michal Gal, Damien Geradin, Ioannis Lianos and Tommaso Valletti

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