At its broadest level of generality, Section 1 of the Sherman Act—the
mainstay of federal antitrust laws governing agreementsprohibits
unreasonable contracts, combinations, and conspiracies in restraint of
trade. Since its passage in 1890, courts, government enforcers, and private
parties have struggled with Section 1’s sparse language but broad
mandate, and a rich and varied precedent defining the antitrust treatment
of agreements has accumulated over time.
This book focuses upon part of that mosaic: How the courts handle the
issue of proving an agreement. That issue is step one. Without an
agreement, there is no violation of Section 1.
In the antitrust context, however, the concept of agreement is not
necessarily straightforward. Agreements may be express or implied,
formal or informal, highly specified or not, simple or complex, written,
spoken, or even entered into by a “wink of an eye”—so long as there is
clear evidence of a conscious commitment to a common scheme.
This book is intended to be a guide to the current state of federal
antitrust law on proof of agreement. Chapter I begins by examining the
congressional intent behind Section 1 and how early Supreme Court
decisions interpreted the statute in order to identify the types of agreements
the law was meant to regulate. Chapter II addresses the fundamental
definitional question of what constitutes an agreementor, as the
Supreme Court has termed it, a “conscious commitment to a common
scheme.” It examines how the definition may be affected by either the
horizontal or vertical relationships of parties to an agreement and analyzes
issues of proof related to a party’s participation in or withdrawal from a
conspiracy. Chapter III examines basic issues in proving an agreement,
either through direct evidence or circumstantial evidence, such as
consciously parallel behavior coupled with “plus” factors. Chapter IV
discusses recurring and import ant issues of proof, including how the
Federal Rules of Evidence address statements and actions of alleged co-
conspirators, i ncluding an alleged co-conspirator’s invocation of its Fifth
Amendment right against self-incrimination, participation in the U.S.
Justice Department’s Antitrust leniency program or guilty plea. Chapter V

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