Chapter I. The Noerr-Pennington Doctrine Defined

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CHAPTER I

THE NOERR-PENNINGTON DOCTRINE DEFINED

Those who petition government for redress are generally immune from

antitrust liability.

—Professional Real Estate Investors v. Columbia Pictures Industries,

508 U.S. 49, 56 (1993).

A. The Definition of the Noerr-Pennington Doctrine

This book discusses the antitrust defense known most commonly as

the “Noerr-Pennington doctrine” after the first two cases that define the

doctrine.

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It is not easy t o define with rigor a doctrine that was first articulated,

and has since been developed, by the judiciary. Among other things, any

definition adopted here runs the risk of being outdated upon issuance of

the next opinion from the Supreme Court. But that risk is irreducible,

and since it remains, as Justice Holmes often said, in the nature of

mankind to formulate general propositions,

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this book shall attempt to

fully articulate a working definition of the Noerr-Pennington doctrine.

In this book, the Noerr-Pennington doctrine is defined as a judicially-

1. E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127

(1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).

2. E.g., Letter from Oliver Wendell Holmes to Frederick Pollock (May 26,

1919), in 2 HOLMES-POLLOCK LETTERS: THE CORRESPONDENCE OF MR.

JUSTICE HOLMES AND SIR FREDERICK POLLOCK 1874 -1932, at 13 (Mark

DeWolfe Howe ed. 1941) (“I always say the chief end of man is to form

general propositions— adding that no general propo sition is worth a

damn.”).