Southern California Law Review, Vol. 55, No. 1 (November 1981), pp. 1-64

Abstract

Entry into and competition within professions and many industries is commonly restricted by private regulation among competitors. These restrictions are often effectuated, without direct government participation, through rules, procedures, or standards established by trade or professional organizations. Sometimes, however, the restrictions are made through less formalized concerted decisionmaking procedures by persons potentially in competition with new entrants. Such privately imposed restraints on competition have recently been the focus of an increasing number of private treble damages actions under section 1 of the Sherman Act. In these cases, the plaintiffs have alleged that the defendants were engaged in illegal boycotts, and that the defendants had no valid antitrust defense. The resolution of these cases by the appellate courts suggests the existence of substantial confusion concerning the application of antitrust boycott law as developed by the Supreme Court. This confusion has engendered protracted litigation. The ambiguity with respect to antitrust boycott law has been underscored by several recent nonboycott Sherman Act decisions by the Court.

This Article first identifies the apparent sources of disagreement among the courts concerning the rules and elements of boycott law, particularly when applied to industry or professional self-regulation conducted for arguably non-anticompetitive purposes. Next, the Article discusses the rationale employed by the Supreme Court in boycott decisions and the attempted application of this rationale in a number of representative lower court decisions. Finally, this Article suggests that, contrary to some recent writing on the subject, the doctrine of per se illegality, when appropriately invoked, has remained essentially unchanged. Therefore, lower courts should apply the per se doctrine to various forms of private regulatory activity undertaken without governmental approval.

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