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68 Antitrust L.J. 125 (2000-2001)
The Robinson-Patman Act and Competition: Unfinished Business

handle is hein.journals/antil68 and id is 135 raw text is: THE ROBINSON-PATMAN ACT AND COMPETITION: UNFINISHED BUSINESS HERBERT HOVENKAMP* I. INTRODUCTION The secondary-line provisions of the Robinson-Patman Act are irritat- ing to almost anyone who is serious about antitrust. This statute makes it unlawful for a supplier to discriminate' in price between two of its dealers where the requisite effects on competition are shown. Its many idiosyncracies, which often conflict with basic principles of antitrust and statutory interpretation, have made it a virtual system of belief to its loyal practitioners. Robinson-Patman Act jurisprudence has all but evaded the economic revolution in antitrust. In Sherman Act cases that revolution has extended even to old doctrines, such as the per se rule against resale price mainte- nance. While that rule remains nominally intact, it has been largely defanged by a strict agreement requirement and a narrow construction of the term price.2 By contrast, several decisions interpreting the Robinson-Patman Act have refused to require the injury to competition that is a prerequisite to recovery in Sherman Act cases, as well as those brought under the remaining provisions of the Clayton Act, including the Robinson-Patman Act's primary-line provisions. The principal reason for distinguishing secondary-line Robinson-Patman Act cases is a belief that the legislative history of the Robinson-Patman Act reveals that the statute was motivated by different concerns than the ones that inspired the Sherman and Clayton Acts generally. That proposition is false. * Ben V. & Dorothy Willie Professor of Law and History, University of Iowa. Thanks to Jonathan Baker and J. Robert Robertson for valuable comments on an earlier draft. I While the Robinson-Patman Act uses the language of discrimination, it actually refers only to price differences, and thus (1) does not reach many instances of actual price discrimination, and (2) condemns as discrimination transactions that are in fact not economically discriminatory. See 14 HERBERT HOVENKAMP, ANTITRUST LAW 2320 (1999). 2E.g., Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717 (1988); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984).

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