About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most