The Role of Specific Intent in Section 1 of the Sherman Act: A Market Power Test?

Abstract

Whilst there is an increasing tendency to look exclusively to economics for solutions to the problems of antitrust, this paper defends the role of specific intent. In Barry Wright Corporation v. ITT Grinnell Corporation, Judge Stephen Breyer seemed to reject any role for specific intent in antitrust analysis, a sentiment reaffirmed by Judge Frank Easterbrook in A. A. Poultry Farms v. Rose Acre Farms. This paper argues that since economics fails to provide a determinative test for market power, the courts can and have used specific intent, as a non-economic market power test in applying § 1 of the Sherman Act. After explaining the rationale for using specific intent as a market power test and showing that it has been used as such by the courts, I argue that Judges Bryer and Easterbrook rejected only certain methods of determining specific intent, rather than the utility of the concept in antitrust.