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Extant and Possible Tests of Antitrust Illegality

In: Welfare Economics and Antitrust Policy - Vol. I

Author

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  • Richard S. Markovits

    (University of Texas School of Law)

Abstract

This chapter delineates the tests of antitrust illegality promulgated by U.S. antitrust law and/or E.U. competition law as well as a number of other tests of antitrust illegality that could be promulgated. Section 3.1 provides operational definitions of the “basic” tests of antitrust illegality promulgated by U.S. antitrust law and/or E.U. competition law and delineates some “qualifications” to those tests that the relevant U.S. statutes or E.U. treaty provisions introduce. The basic tests in question are (1) a “specific-anticompetitive-intent” test of illegality, (2) a “lessening-competition” test of illegality, (3) a “distorting-competition” test of illegality, and (4) a seller-oriented “exploitative abuse of economic power” test of illegality. Footnotes to Sect. 3.1 list the various conduct-coverage and actor-coverage limitations of the legislation/treaty provisions that promulgate the tests in question. Section 3.2 articulates a number of alternative tests of antitrust illegality that could be promulgated—tests that focus on conduct’s or its prohibition’s impact on economic efficiency, liberal moral rights, or the instantiation of some morally-defensible conception of the moral good.

Suggested Citation

  • Richard S. Markovits, 2021. "Extant and Possible Tests of Antitrust Illegality," Springer Books, in: Welfare Economics and Antitrust Policy - Vol. I, chapter 0, pages 49-65, Springer.
    • Handle: RePEc:spr:sprchp:978-3-030-79812-3_3
    DOI: 10.1007/978-3-030-79812-3_3
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