Challenging the Chicago School on Vertical Restraints

Were I czar of antitrust, I would acknowledge-within the antitrust vertical restraint arena-the weakness of the Chicago approach. I would require a defendant to prove, as a defense, that its market functioned in accord with the Chicago model. I would acknowledge that "consumer welfare" consists of more than simply a desire for low prices. Furthermore, I would acknowledge that, insofar as low prices are desirable, intrabrand competition may be vital, and I would again leave it to a defendant to prove, as a defense, that intrabrand competition is irrelevant to low prices in its particular market.

Finally, I would acknowledge that not all markets self-correct and that courts and agencies may well have to insert themselves into some markets in order to serve the public good. However, I am not the czar of antitrust. Unless the courts are willing to do an about-face and acknowledge the shortcomings of the Chicago approach in vertical restraints, we will simply have to look to other trade regulation law and rulings to respond to life's messiness.