4 Sup. Ct. Econ. Rev. 57 (1994-1995)
The Supreme Court's Predation Odyssey: From Fruit Pies to Cigarettes

handle is hein.journals/supeco4 and id is 61 raw text is: The Supreme Court's Predation Odyssey:
From Fruit Pies to Cigarettes
Donald J. Boudreauxt Kenneth G. Elzinga,tt
and David E. Millst
Brooke Group, Ltd. v Brown & Williamson Tobacco Corp.-
the Supreme Court's first predatory pricing decision under
the Robinson-Patman Act since Utah Pie in 1967-makes
clear the Court's heightened skepticism toward claims of
predatory pricing. Under Brooke, plaintiffs must show not
only that a defendant had a genuine possibility of bankrupt-
ing or disciplining its prey, but also that the defendant had
a strong prospect of recouping its predatory losses. While ap-
plauding the Court's decision, the authors question the
Court's refusal to accept a rule of per se legality to govern
price cutting by members of noncollusive oligopolies. For
reasons the Court itself spelled out, price cutting by mem-
bers of noncollusive oligopolies is so unlikely a means of
successful monopolization that such pricing behavior ought
to be governed by a rule of per se legality.
I. INTRODUCTION
Brooke Group, Ltd. v Brown & Wiliamson Tobacco Corp.1 is the
first Supreme Court decision on predatory pricing under the Rob-
inson-Patman Act since the 1967 Utah Pie case.' The outcome and
t Associate Professor of Legal Studies, Clemson University.
, Professor of Economics, University of Virginia.
, Professor of Economics, University of Virginia.
Elzinga and Mills served as consultants to Brown & Williamson during the Brooke
litigation. The authors thank Karol Ceplo, Don Dewey, Adam Pritchard, Bruce Yan-
die, and two anonymous referees for helpful discussion and comments.
1 113 S Ct 2578 (1993). At oral argument, the Supreme Court witnessed a battle
of two antitrust titans: Philip Areeda (for appellant Brooke Group) and Robert Bork
(for appellee Brown & Williamson).
2 Utah Pie Co. v Continental Baking Co., 386 US 685 (1967).
O 1995 by The University of Chicago. All rights reserved. 0-226-28685-1/95/0004-00202.00

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