The Chicago School and the Evolution of Antitrust: Characterization, Antitrust Injury, and Evidentiary Sufficiency

Abstract

This article, published in 1989, examines the influence of the Chicago School's antitrust paradigm on the evolution of antitrust law. It argues that courts have accepted many of the Chicago Schools positive models of practices like cartels, tying arrangements, and predatory pricing, but have been slower to adopt key elements of the Chicago School's policy program -- particularly rules of per se legality -- as substantive rules. The article identifies the primary influence of the Chicago School's models in subsidiary decisional contexts, particularly the characterization of practices as within or without established substantive rules; the determination of whether private harms from practices constitute antitrust injury; and in the determination of whether a plaintiff's evidence is sufficient to raise a triable issue of fact that a violation has occurred.