Vertical Restraints, Efficiency, and the Real World

In this Article, Professor Burns addresses the rise of economic efficiency in antitrust jurisprudence. She argues that the theory is incomplete in that it fails to address “noneconomic” concerns, such as dealer fairness, intraband competition, and business ethics, which society wishes addressed. Societal concern, she argues, is evidenced by the rise of dealer fairness remedies outside the realm of antitrust law. In addition, she argues that the public regards the economic efficiency theory as out of touch with reality as evidenced by the vocal opposition of sophisticated consumer groups to modern Chicago-School-influenced antitrust jurisprudence.

She concludes by voicing support for a more fact-specific antitrust jurisprudence--a trend exemplified by the recent Eastman-Kodak decision--for legislation returning antitrust to the pre-Chicago status quo ante, and for the retention of dealer remedies outside of antitrust as an outlet for fairness concerns.