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72 Harv. L. Rev. 50 (1958-1959)
The Validity of Tying Arrangements Under the Antitrust Laws

handle is hein.journals/hlr72 and id is 84 raw text is: THE VALIDITY OF TYING ARRANGEMENTS UNDER THE ANTITRUST LAWS Donald F. Turner * Focusing particular attention on Northern Pac. Ry. v. United States, Professor Turner examines recent tie-in decisions of the Supreme Court. Within the framework of these cases, he analyzes the con- flicting interests at stake and sets forth criteria to determine when a per se rule should be applied to tying arrangements which cover a substantial amount of commerce. N Northern Pac. Ry. v. United States,1 the Supreme Court has again dealt harshly under the antitrust laws with arrangements tying the sale of one product to the sale or lease of another. The railroad, in dislosing of its extensive land-grant holdings by sale and lease, had inserted preferential routing clauses in many of the contracts. These clauses compelled the grantee or lessee to use Northern Pacific lines in transporting, to destinations served by those lines, all commodities produced or manufactured on the land, provided that Northern's rates, or rates and service, matched those of competing carriers. The Government obtained summary judgment in the district court that the clauses were unlawful re- straints of trade under section i of the Sherman Act.' The Su- preme Court, dividing five to three, affirmed. This is the second leading tie-in case in a row to split the Court. The first was Times-Picayune Publishing Co. v. United States,' in which the majority, after restating the law on tying arrange- ments, held that a tie-in of morning and afternoon newspaper advertising space was not illegal because the tied products were identical, and because there was no market dominance in the tying product. The features common to both cases are (i) that the tying products - the products to which other products or services were tied - were unpatented; and (2) that the products involyed - land and services - apparently did not come within the terms * Professor of Law, Harvard Law School. A.B., Northwestern, 1941; Ph.D., Harvard, 1947; LL.B., Yale, ig5o. '356 U.S. ' (1958). 2 United States v. Northern Pac. Ry., 142 F. Supp. 679 (W.D. Wash. 1956). 345 U.S. 594 (1953).

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