I just discovered that Ken Elzinga’s, David Mills’s, and my 1995 Supreme Court Economic Review paper, “The Supreme Court’s Predation Odyssey: From Fruit Pies to Cigarettes,” is available at JSTOR. (I post it here in my effort to archive at Cafe Hayek as many as possible of my writings.)
The abstract:
Brooke Group, Ltd. v Brown & Williamson Tobacco Corp. – the Supreme Court’s first predatory pricing decision under the Robinson-Patman Act since Utah Pie in 1967 – makes clear the Court’s heightened skepticism toward claims of predatory pricing. Under Brooke, plaintiffs must show not only that a defendant had a genuine possibility of bankrupting or disciplining its prey, but also that the defendant had a strong prospect of recouping its predatory losses. While applauding the Court’s decision, the authors question the Court’s refusal to accept a rule of per se legality to govern price cutting by members of noncollusive oligopolies. For reasons the Court itself spelled out, price cutting by members of noncollusive oligopolies is so unlikely a means of successful monopolization that such pricing behavior ought to be governed by a rule of per se legality.
