Antitrust's Single-Entity Doctrine: A Formalistic Approach for a Formalistic Rule

作者：Schmitten J Matthew

来源：Columbia Journal of Law and Social Problems, 2012, 46(1): 93-144.

Antitrust law makes a fundamental distinction between "concerted" conduct among multiple entities and "unilateral" conduct of single entities. Under the "single-entity doctrine," 1 of the Sherman Antitrust Act is inapplicable to the latter. The statutory hook for this distinction is that 1 only outlaws agreements, and a single entity cannot "agree" with itself However, it is exceedingly difficult to find a principled basis for deciding which complex business organizations, all of which comprise a number of persons, should qualify as a 'single entity" for 1 purposes. The problem stems from the inescapable fact that the "agreement" requirement of 1 is itself a formal rule, not an economically meaningful standard. Perhaps because of the tension between such a formalistic requirement and an increasingly economics-based antitrust jurisprudence, the Supreme Court has not articulated a clear and predictable standard for application of the single-entity doctrine over the last century. This Note proposes a solution that embraces the formality of 1's "agreement" requirement with a formalistic rule for determining business organizations' single-entity status. Under this approach, whether a business constituted a single entity for 1 purposes would depend entirely on the "form" into which that business was organized. The courts would simply choose the 'forms" into which persons must formally organize themselves in order to obtain 1 immunity and then use antitrust's regulation of mergers to police self-sorting into those forms. This would reduce the indeterminacy of current doctrine, which should appreciably reduce the administrative costs of antitrust litigation without a comparable risk of an increase in error costs.

• 出版日期2012