In 1970, a district court observed: "We must confess at the outset that we find antitrust standing cases more than a little confusing and certainly beyond our powers of reconciliation." The court could hardly have been faulted, for the confusion it noted has been endemic to these cases since the creation of the treble-damages action. Courts have never read section 4 of the Clayton Act literally to allow treble damages to every plaintiff able to attribute an economic loss to an antitrust violation. This unwillingness to recognize every such injury is fully consistent with the essential principle of antitrust law – that the antitrust laws protect competition as a whole, not individual competitors. Instead of relying upon this substantive principle, however, courts have often used common-law rules of proximate cause to restrict the number of potential plaintiffs. These rules of tort have produced results inconsistent with the goals of antitrust law and have been responsible for much of the confusion in standing case law.
This Note argues that the application of tort analysis to questions of standing under section 4 has stemmed from a failure to recognize the nature of the per se standard in antitrust law. Once the limited scope of that standard is appreciated, a standing doctrine more consistent with the concerns of substantive antitrust law can be developed. The standing approach this Note endorses – one that looks to market effects rather than to the peculiar circumstances of a plaintiff's injury – is hardly novel; indeed, one of its chief virtues is that it draws support from several recent Supreme Court cases. By discussing the interplay between standing and substantive antitrust law, however, this Note supports and extends recent moves toward doctrinal clarity.
Daniel C. Richman,
Antitrust Standing, Antitrust Injury, and the Per Se Standard,
Yale L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/568