This Article examines the recent judicial experience in this endeavor. The purposes of the Article are twofold.The first is to describe the current state of the law regarding predation and to discern significant trends that may be developing. The second purpose is to explore the considerations that courts must weigh in evaluating the legal utility of proposed rules that may be valid as a matter of economic theory. Toward these ends,part II of the Article examines the economic and legal context in which litigants present predation claims. Specifically, this part re-views some of the academic debates that have so greatly influenced recent courtroom developments, the statutory framework within which these developments have occurred, and the legacy of Utah Pie Co. v. Continental Baking Co., which is the Supreme Court's most recent predation decision. Part III then explores the standards that courts are applying in the three principal predation contexts-pricing, innovation, and promotion. Finally, part IV examines certain patterns of judicial analysis that are apparent in fifty-seven cases decided during and after 1975, the year in which Professors Areeda and Turner published their seminal article on predatory pricing. These patterns are important and predictive, for they reflect the courts' views about both the frequency and competitive dangers of predation and the administrative costs of attempting to control it. This examination also includes a table summarizing the outcomes of these cases--who won, in which types of cases, at what procedural stage--and a discussion of some economic and administrative considerations underlying those outcomes.' Overall, the analysis in this Article reveals both the legal trends in one specific area of antitrust law--predation-and, more broadly, the methods by which scholarly and judicial analyses can build upon one another to promote more rapid development of an evolving field of legal inquiry.
James D. Hurwitz and William E. Kovacic,
Judicial Analysis of Predation: The Emerging Trends,
35 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol35/iss1/2