Introduction

• Pages: 13-16

INTRODUCTION

The relationship between antitrust and business tort laws is a

familiar and uneasy one. Both trace their antecedents to the common law

of England, and generally address competitive conduct. Yet in this

country antitrust and business torts have developed as separate branches

of the law, largely in different judicial systems. Moreover, they are

commonly perceived to be grounded in different policy objectives: often

it is said that where antitrust seeks to promote competition, business torts

seek to prevent competition that is deemed wrongful.1 As an historical

consequence, much competitive conduct is subject to varying, and often

contradictory, legal rules.

There are further complications. Although antitrust law has

primarily developed within a single judicial system (i.e., the federal

courts), business torts are creatures of state law, and thus vary to greater

or lesser degrees from state to state. Furthermore, antitrust law today is

not all of a piece: as evolving rules governing standing and competitive

effects have generally narrowed the range of private civil liability under

the federal antitrust laws, legislatures and courts have expanded the

scope of antitrust liability at the state level. Concurrently, state

legislatures have enacted legislation supplementing the common law of

unfair competition, and state courts have greatly expanded common law

business torts and the civil liabilities arising from them. As a result,

competitors face a greatly expanded range of legal rules and potential

liabilities under state law.

This shift in the relative prominence of federal antitrust law and

state statutory and common law has produced another, more subtle,

effect. In years past plaintiffs often sought to bolster their antitrust

claims with proof of business torts or other acts of unfair competition,

and defendants resisted such efforts on the theory that antitrust and

business tort doctrines reflected different policy concerns. Today the

roles often are reversed. Encouraged by their recent successes in

1. See Nw. Power Prods., Inc. v. Omark Indus., Inc., 576 F.2d 83, 88 (5th Cir.

1978) (“the purposes of antitrust law and unfair competition law generally

conflict”); see generally H.B. THORELLI, THE FEDERAL ANTITRUST POLICY

4-5, 12 (1955).