Antitrust Bugbears: Substitute Products. Oligopoly

Abstract

Antitrust law and antitrust economics have, over the course of many years, developed a patois or jargon of impressive size. Rule of reason, ''price fixing, cross licensing, power to exclude are among the many terms not infrequently used with respect to antitrust cases or antitrust policy. Generally, they do not enjoy the preciseness of a dictionary definition. For the most part, however, their birth and growth have shaped the course of antitrust enforcement. Their influence on the scope of the antitrust laws has been marked. In recent years, two terms have increasingly found their way into antitrust literature and antitrust cases. Both have serious implications with respect to the future course of the antitrust laws. The terms are substitute products-for which alternative products is a synonym -and oligopoly. The antitrust prosecutor is likely to assert that they were invented by the devil, by which he means defendants' attorneys. Defendants' attorneys would be prone to deny authorship, but would argue that if these terms are shoes that fit a situation, why should they not be used? Attorneys are hardly to be blamed if they and economists, by intellectual prowess and able publicity, have nurtured these terms into sturdy weapons of defense to a monopoly charge. Both are increasingly used to explain why particular situations should not or do not come within the Sherman Act. Both are buttressed by the insistence of numbers of businessmen that examination of the market in action, the operations of businessmen in competition with one another, shows that these terms are regularly evaluated factors translated into business judgments. With respect to substitute products at least, we may add that the theory, if not the terminology, has been a problem with which the courts have wrestled for many years.