80 Colum. L. Rev. 1317 (1980)
NOW or Never: Is There Antitrust Liability for Noncommercial Boycotts

handle is hein.journals/clr80 and id is 1335 raw text is: NOW or Never: Is There Antitrust Liability
for Noncommercial Boycotts?
A group boycott is a concerted refusal to deal with a third party,' with the aim
of excluding the party from a particular market 2 or coercing the party to agree to
the boycotters' terms as a condition of participation in the market.3 All group
boycotts considered by the Supreme Court have been conducted by business
firms or associations of such firms.4      In this context the Court has held that
group boycotts are per se illegal,5 finding that they violate section 1 of the
Sherman Act' without regard to either market impact7 or the purported benefits
to the industry or the public8 flowing from the concerted action. The per se rule
1. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 541 (1978) (The generic
concept of boycott refers to a method of pressuring a party with whom one has a dispute by with-
holding, or enlisting others to withhold, patronage or services from the target.) (footnote omitted);
Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212 (1959) (Group boycotts . . . [are]
concerted refusals by traders to deal with other traders ....). See generally L. Sullivan, Handbook
of the Law of Antitrust 229-56 (1977); Barber, Refusals to Deal Under the Federal Antitrust Laws,
103 U. Pa. L. Rev. 847 (1955).
2. See, e.g., Montague & Co. v. Lowry, 193 U.S. 38 (1904).
3. See, e.g., Paramount Famous Lasky Corp. v. United States, 282 U.S. 30 (1930). But see L.
Sullivan, supra note 1, at 256-59.
4. See Silver v. New York Stock Exch., 373 U.S. 341 (1963) (membership exchange of
broker-dealers in securities); Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656
(1961) (per curiam) (manufacturers of gas burners and utility companies); KIor's, Inc. v.
Broadway-Hale Stores, Inc., 359 U.S. 207 (1959) (department store chain, manufacturers and dis-
tributors of appliances); Associated Press v. United States, 326 U.S. 1 (1945) (cooperative associa-
tion of newspaper publishers); United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533
(1944) (association of insurance companies); Fashion Originators' Guild of America v. FTC, 312
U.S. 457 (1941) (association of women's garment manufacturers and textile manufacturers). But see
American Medical Ass'n v. United States, 317 U.S. 519 (1943) (association of physicians).
5. Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212 (1959). See generally L.
Sullivan, supra note 1, at 192-94. The per se approach to Sherman Act violations has been justified
by the limited ability of courts to examine economic problems and weigh competing economic values
and by the guidance it gives to businessmen concerning the legality of certain business practices.
United States v. Topco Assocs., Inc., 405 U.S. 596, 609-10 & n.10 (1972).
The Supreme Court has never applied a rule of reason analysis to group boycotts. However, in
Associated Press v. United States, 326 U.S. 1 (1945), the Court declined to invalidate an association
bylaw prohibiting the sale of news to nonmembers on the ground that the bylaw was not in and of
itself illegal in the absence of certain anticompetitive admissions policies that had been enjoined. Id.
at 22. The case suggests that concerted refusals to deal are acceptable under certain circumstances.
Moreover, in St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 542 & n.14 (1978), the Court
implied that the question of whether all boycotts are per se illegal may still be open.
6. Section 1 of the Sherman Act provides:
Every contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign nations, is
declared to be illegal. Every person who shall make any contract or engage in any
combination or conspiracy . . . declared to be illegal shall be deemed guilty of a
felony . . ..
15 U.S.C. § 1 (1976).
7. Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 659-60 (1961) (per
curiam); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212 (1959).
8. Fashion Originators' Guild of America v. FTC, 312 U.S. 457, 468 (1941); Eastern States
Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 613 (1914).
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