Rethinking Antitrust Injury

Substantive changes in antitrust law since 1977 have had a dramatic impact on the vitality of antitrust enforcement.' Recent "procedural" changes now seem likely to have as great an influence. In the procedural area, the emphasis has been on antitrust standing and anti-trust injury. As a result of recent judicial interpretations of these requirements, antitrust plaintiffs face increasingly formidable hurdles. As courts focus on questions of standing and injury, important discussions about whether a practice should be held to a per se or rule of reason standards frequently are immaterial.

If there is no qualified plaintiff,the substantive issue need never be addressed. Technically, standing requirements limit the array of potential plaintiffs while antitrust injury requirements limit the types of compensable harms. Together, however, they form a generalized standing requirement: a list of conditions a plaintiff must satisfy before qualifying to proceed to the substantive antitrust question. The Supreme Court neglected the issue until 1977.

Since that time, the Court has considered the issue on five occasions. Despite this repeated analysis, the Court has provided little guidance with respect to antitrust standing.This lack of guidance can be traced to the Supreme Court's enunciation of rather general guidelines and then applying those guidelines in substantive factual contexts that are not representative of most antitrust litigation. Consequently, a division between circuits has emerged with respect to the status of different classes of antitrust plaintiffs.'