THE LIMITS TO SIMPLIFYING THE APPLICATION OF U.S. ANTITRUST LAW

In 1984, then-Professor (now-Judge) Frank Easterbrook published an article recommending that US courts use five filters to dismiss antitrust cases without considering the merits of the plaintiff's or State's claim in any detail. This article argues that no member of any of the eight sets of proposals of this kind that have been made and/or adopted can bear scrutiny. It argues first that all these proposals must be rejected because they are too inaccurate to be morally acceptable or legally valid - that is, because they ignore the fact that the US antitrust laws promulgate cognizable specific-anticompetitive- intent or decreasing-competition tests of legality and the related fact that the moral-rights bearers for whom the US is responsible have a moral and legal right to courts, and juries' doing their best in individual cases to discover the answer to the legal claim at issue that is correct as a matter of law. It argues second that, for a variety of reasons, the proposals in question would not serve the public interest or increase economic efficiency even if such moral-rights considerations could be ignored because they are too inaccurate and relatively too transaction-costly to be desirable, moral rights considerations aside.