Lopatka, John E.; Page, William H. --- "‘Obvious’ Consumer Harm in Antitrust Policy: The Chicago School, the Post-Chicago School and the Courts" [2002] ELECD 93; in Cucinotta, Antonio; Pardolesi, Roberto; Van den Bergh, J. Roger (eds), "Post-Chicago Developments in Antitrust Law" (Edward Elgar Publishing, 2002)

Book Title: Post-Chicago Developments in Antitrust Law

Editor(s): Cucinotta, Antonio; Pardolesi, Roberto; Van den Bergh, J. Roger

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781843760016

Section: Chapter 7

Section Title: ‘Obvious’ Consumer Harm in Antitrust Policy: The Chicago School, the Post-Chicago School and the Courts

Author(s): Lopatka, John E.; Page, William H.

Number of pages: 32

Extract:

7. `Obvious' consumer harm in antitrust
policy: the Chicago School, the
post-Chicago school and the courts
John E. Lopatka and William H. Page

INTRODUCTION
Antitrust policy was born as a compromise between laissez faire and inter-
ventionist ideologies (Page, 1991, p. 1). Because the terms of the compromise
were never specified, interpretive schools espousing versions of those anti-
thetical ideologies have long competed to give their preferred content to the
statutes' vague terms. Over the past few decades, the Chicago School, express-
ing a strong preference for market ordering over government intervention, has
sought to reorient antitrust analysis away from the populism of the Warren
Court era toward economic efficiency (Page, 1989, p. 1221). In recent years,
post-Chicago scholars have advocated a more activist approach to antitrust,
identifying circumstances in which, under certain assumptions, markets may
fail and government intervention may be justified (Kwoka and White, 1999, p.
445; Royall, 1995, p. 445).1 Yet neither side of the debate has won full judi-
cial acceptance. The Supreme Court has endorsed the Chicago School's
approach in several decisional contexts ­ particularly antitrust injury, the char-
acterization of practices and standards for summary judgment (Page, 1989, p.
1257) ­ but has expressly overruled only two precedents of the Warren Court
era.2 Post-Chicago analysts have claimed victories in the Supreme Court's
Aspen (1985) and Kodak (1992)3 decisions and the district court's Microsoft
(2000a) decision, but have otherwise met with little judicial success.
It is not surprising ...