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Reasoning About The Rule Of Reason

Law360 (March 9, 2018, 5:07 PM EST) -- I’m writing in reply to William Kolasky’s response to my recent article, “Is the Antitrust Rule of Reason Reasonable?” At the outset, I would simply remark that there’s less daylight between Kolasky’s view of the factual landscape and my own than may appear at first blush.

I think everyone agrees that the rule of reason has distilled into a three-part rubric for evaluating restraints whose effects are not “always or almost always” anti-competitive. Under this rubric, (1) the plaintiff makes a showing that the restraint is...
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