Bridging The Gulf Between Literalism And Complexity

Law360, New York (November 27, 2013, 5:55 PM EST) -- The U.S. Supreme Court in Broadcast Music Inc. v. Columbia Broadcast System Inc.[1] famously warned against a “literal approach” to the application of the Sherman Act. Literalism, according to the court, is “overly simplistic and often overbroad.”[2]

So we learned, for example, in Broadcast Music, that not all “price fixing” is a per se violation of the Sherman Act. The concept, of course, is that the antitrust laws are not meant to forbid commercial activity that “promotes competition.”[3] However, as Justice Louis Brandeis noted in 1918...
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