Herbert hovenkamp

A big and important victory -- it has become very difficult for challengers to win rule of reason cases, but this is a good opinion showing that it can still be done. US v. Am.Airl. 121 F.4th 209 (1st Cir. 2024), cert. denied, Jn. 30, 2025.

Yesterday's debate shows that if Robinson-Patman supporters prevail the Democrats will never win another election. As politics, favoring high-priced boutiques over larger, highly competitive retailers where more than 2/3 of consumers shop is right up there with defund the police.

Speaking as a generally loyal Democrat, too many of them do not understand that the working class actually likes markets, provided they are healthy. If we understood that better we'd get 80% of the popular vote.

In Quinton v. Amex, 2025 WL 1994848 (EDNY 7-7-2025) the court admitted testimony that Amex's anti-steering rule was unlawful "cross-subsidization" -- a rare case permitting theory that a pure wealth transfer from poorer to wealthier customers could be an antitrust violation.

do the antitrust laws prohibit a party from presenting false information in a govt proceeding that actually succeeds in restraining trade, making the govt itself the cause of the restraint? So asks the Chatom Primary Care cert. petition. 2025 WL 1940382.

I just discovered to my frustration that there is not a good biography of Sidney Winslow. Does anyone out there want to write about one of the most powerful Gilded Age entrepreneurs as well as one of the most storied monopolists of the 20th century, United Shoe Machinery?

Antitrust-focused studies mislead; they focus on concentrated markets. Corp. M&A literature looks at mergers across the board and tends to see efficiencies (“synergies”) as the primary rationale for mergers, with tax results second and market power third. academic.oup.com/rfs/article-ab…

My new piece in Network L.Rev. A trivial % of mergers are motivated by price. Nearly all are efforts to improve production by scale or uniting complements. So a merger “efficiency defense” is wrongheaded, and the Supreme Court has not embraced it. networklawreview.org/hovenkamp-effi…

Me either but the filed complaints against Amazon, including the FTC’s, allege a market of “online commerce”. Makes little sense.

Impact depends on how the new party swings -- too far right, which I fear from Musk, and it will simply divide GOP but have little impact on DEM vote. A truly more centrist party could be a much more substantial threat to current system.

no, I got it off of Westlaw, where the citation is: 2025 WL 1810683

An interesting cert. petition in the SAP vs Teradata case asks the Supreme Court to get rid of the per se rule for tying arrangements -- well timed given the status of some big tech cases. SAP SE v. Teradata, 2025 WL 1810683 (2025). The lower court: 124 F.4th 555 (9th Cir 2025)

Christopher Leslie has published a very interesting article on how antitrust can pursue tacit (implicit) collusion more effectively, especially in concentrated markets. Leslie, Antitrust's Interdependence Paradox, 111 Va. L. Rev. 787 (2025), virginialawreview.org/articles/antit…

you can prevent employees from moving to a competitor (1) by entering noncompete or no poach agreements; or (2) by paying them more. Only the first of these can be an antitrust violation.

Apple court aligns itself with U.S. Airways, 2022 WL 874945 (SDNY), holding that 2 or more firms can monopolize the same market. That leaves open the question whether monopolization requires a dominant firm. ct reserves this issue for summary judgment.

In the very long-running (20 years) Rail Freight Surcharge case, 2025 WL 1784519, the District Court finally granted summary judgment for failure to prove a conspiracy. The court found neither parallel conduct nor behavior that was provably anything other than unilateral.

I've heard the Robinson-Patman Act called many things, but "elegant" has never been one of them.

Theres been an effort on this site to bring the Robinson-Patman Act within consumer welfare. But no one, not even its most ardent supporters, ever believed it would be good for consumers