A Neo-Chicago Perspective on the Law of Product Tying

摘要

Since the emergence of the "Chicago School" in the 1970s, U.S. antitrust policy has been evolving into a legal body of increasing economic sophistication. Gone are the days in which courts employed impressionistic assessments of competitive harm in construing challenged business practices. Promoting the welfare of the consumer, economically defined, appears to have emerged as the sole legitimate goal of the antitrust laws. Yet, one area of antitrust jurisprudence—product tying—has remained surprisingly resistant to the recent surge of economic analysis and continues to be regarded with hostility on an almost ubiquitous basis by the courts. It is here that one finds the last refuge of the "Harvard School," according to which equitable wealth distribution and harm to competitors must be considered as legitimate antitrust concerns. The law governing tying arrangements is now a focal point of tension between the two major antitrust philosophies.