Holmes and the Bald Man: Why Rule of Reason Should Be the Standard in Sherman Act Section 2 Cases

[Excerpt] "It has been argued that the antitrust laws’ legislative history supports the notion that the laws were meant to prohibit anticompetitive price cuts – regardless of whether they are below cost. Thus, predatory pricing claims used to turn simply on whether the allegedly predatory price was intended to harm rivals. In fact, liability for predatory price discrimination was found without requiring probable or actual monopolization. Yet some cases brought early under Section 2 suggest that below cost pricing was indicative of, if not proof of, the type of conduct Section 2 prohibits.

The results under this old scheme were mixed.”