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65 Harv. L. Rev. 913 (1951-1952)
Relevance of Economic Factors in Determining Whether Exclusive Arrangements Violate Section 3 of the Clayton Act, The

handle is hein.journals/hlr65 and id is 959 raw text is: VOLUME 65 I HARVARD LAW REVIEW THE RELEVANCE OF ECONOMIC FACTORS IN DETERMINING WHETHER EXCLUSIVE ARRANGEMENTS VIOLATE SECTION 3 OF THE CLAYTON ACT William B. Lockhart * and Howard R. Sacks** I. INTRODUCTION N recent years the Antitrust Division of the Department of Jus- tice and the Federal Trade Commission have made repeated attacks on a variety of marketing devices falling into the general category of exclusive arrangements.1 Most of the cases charged a supplier with using some form of exclusive dealing, exclusive use, or tying arrangement to restrict the freedom of buyers to purchase from competing suppliers. This article is concerned with the relevance of economic factors in determining whether * Professor of Law, University of Minnesota. A.B., Drake, 1929; A.M., Harvard, 1930, LL.B., 1933, S.J.D., 1943. **Assistant Chief Counsel, Wage Stabilization Board. A.B., Minnesota, 194z; LL.B., Yale, 1948. The authors acknowledge, with thanks, the valuable suggestions made by Mr. Adam Yarmolinsky, Professor Alan Axelrod and Professor Kenneth C. Davis. 'See, e.g., United States v. American Can Co., 87 F. Supp. x8 (N.D. Cal. 1949) (tying arrangements and exclusive use contracts involving cans and can-closing machinery); United States v. Richfield Oil Corp., 99 F. Supp. 280 (S.D. Cal.), probable jurisdiction noted, 72 Sup. Ct. 168 (z95z) (exclusive dealing in petroleum products) ; United States v. Railway Express Agency, Inc., CCH TRADE REG. REP. 67,215 (D. Del. Ig5I) (civil suit charging exclusive contracts with railroads for express business); Outboard, Marine & Mfg. Co., 3 CCH TRADE REG. REP. ff 14,708 (FTC Dkt. No. 5882, 1951) (complaint charging exclusive dealing in outboard motors); United States v. Western Newspaper Union, CCH TRADE REG. REP. [ 61,365 (SD. Fla. i95g) (civil suit charging exclusive distributorship for several suppliers of partially preprinted pages for weekly newspapers). APRIL 1952 NUMBER 6

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