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173 U. Pa. L. Rev. Online 1 (2025)

handle is hein.journals/pennumbra173 and id is 1 raw text is: ESSAY AGAINST THE SLIDING SCALE ALAN J. MEESE' INTRODUCTION Gavil and Salop claim that the Chicago School's conservative critique of antitrust law has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct.1 The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School's baneful influence. In suggesting these reforms, they hope sometimes to alter the parties' respective burdens of production and the manner of satisfying such burdens.2 This essay focuses on Gavil and Salop's embrace of a so-called sliding scale approach to rule of reason analysis.3 This approach is best exemplified by the quick look method of assessing restraints. Under this approach, courts presumptively condemn restraints they deem inherently suspect without t Ball Professor of Law, Dean's Fellow and Co-Director, Center for the Study of Law and Markets, William and Mary Law School. 1 Andrew I. Gavil & Steven C. Salop, Probability, Presumptions and Evidentiary Burdens in Antitrust Analysis: Revitalizing the Rule of Reason for Exclusionary Conduct, 168 U. PA. L. REV. 2107, 2110 (2020); id. at 2122-2124 (describing the Chicago School approach to evaluating exclusionary conduct). 2 See id. at 2113 (We propose eliminating continued reliance on the unwarranted assumptions that have raised the plaintiff's burden in exclusionary conduct cases and tipped the litigation scales in favor of defendants .... 3 Id. at 2121. (1)

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