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13 U. Tol. L. Rev. 539 (1981-1982)
The Predatory Pricing Controversy: Academic Theories Enter the Courtroom

handle is hein.journals/utol13 and id is 551 raw text is: THE PREDATORY PRICING CONTROVERSY: ACADEMIC THEORIES ENTER THE COURTROOM Murray S. Monroe Thomas C. Hill* I. INTRODUCTION S INCE the time of the Standard Oil Trust, the notion that low pricing may be an anti-competitive practice which violates the antitrust laws has been elusive and almost unprovable. In 1975, Professors Phillip Areeda and Donald Turner attempted to intro- duce some order to areas where the case law was in chaos, and some practicality where only impractical theories had reigned. Virtually every economist in the country with antitrust experience felt called upon to reject, rebut or rejoin the Areeda-Turner test.1 After considering the seemingly infinite variety of possible ap- proaches, most courts have adopted consistent responses to the Areeda-Turner theory. It is now incumbent upon practitioners to present their clients' cases in the context of the legal tests that have evolved. It is also important for practitioners to anticipate the myr- iad practical and procedural problems that will arise in any trial of a predatory pricing case under the evolving standards.2 Because pred- atory pricing lawsuits present a number of opportunities for waiver of significant substantive rights through failure to follow the proper procedures, practitioners must anticipate some of the situations pe- culiar to predatory pricing actions. Predatory pricing has been analyzed as an attempt to monopolize under section 2 of the Sherman Act,' as actual monopolization * The authors are partners in the Cincinnati, Ohio law firm of Taft, Stettinius & Hollister. They wish to thank their associate, William J. Seitz, for his assistance with the research for this article. 1. A number of the major articles are reviewed in Richter Concrete Corp. v. Hilltop Basic Resources, Inc., 1981-1 Trade Cas. (CCH) 63,947, at 75,877 (S.D. Ohio 1981), appeal docketed, No. 81-3266 (6th Cir. May 11, 1981). Others are discussed in Easterbrook, Predatory Strategies and Counterstrategies, 48 U. CHI. L. REv. 263 (1981). 2. See infra section IV. 3. Sherman Act § 2, 15 U.S.C. § 2 (1976).

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