Stopping Above-Cost Predatory Pricing

Since 1993, when the Supreme Court decided Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., no predatory pricing plaintiff has prevailed in a final determination in the federal courts. This essay argues that the decision in Brooke Group was no great day for consumers, for well-functioning markets, or for antitrust law. The Court's reading of the law is unduly narrow and should be revisited. In particular, there is no compelling reason to restrict predation cases to below-cost pricing, as above-cost pricing can also hurt consumers by limiting competition. In cases of monopolization or attempted monopolization, such "above-cost predation" may be more plausible and prevalent than below-cost predation. As a result, this essay argues that the courts should limit the Brooke Group holding to oligopoly cases like that in which it arose.