Thirty Years on: The Past Influence and Continued Significance of Matsushita-Introductory Note

• Author: Andrew I. Gavil
• Position: Professor of Law, Howard University School of Law, and Chair, Editorial Board, Antitrust Law Journal
• Pages: 1-13

SYMPOSIUM

THIRTY YEARS ON: THE PAST INFLUENCE AND

CONTINUED SIGNIFICANCE OF MATSUSHITA

INTRODUCTORY NOTE

A

NDREW

I. G

AVIL

*

Antitrust law and practice have undergone a widely acknowledged transfor-

mation in the United States since the mid-1970s. Years of thoughtful criticism

had revealed the flaws of undemanding burdens of proof, hostility to effi-

ciency claims, and arguably ineffective procedures for resolving the weakest

cases. In response, Supreme Court decisions, such as Brunswick,

1

Sylvania,

2

National Society of Professional Engineers,

3

and Broadcast Music,

4

collec-

tively signaled the Court’s receptivity to new ideas and initiated a process of

evolution that continues to this day. That process has led to new rules on

standing and injury, more demanding burdens of pleading, production, and

proof, and greater reliance on economic analysis and decision-theoretic ap-

proaches to the formulation of rules of conduct. The antitrust of 2018 is quite

different from the antitrust of 1975, so much so that it has now provoked a

new generation of criticism questioning whether it has become too

permissive.

* Professor of Law, Howard University School of Law, and Chair, Editorial Board, Antitrust

Law Journal. The author would like to thank Ernst A. Pirre-Louis, Howard University Class of

2019, for his research assistance.

1

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (interpreting anti-

trust law’s private right of action under Section 4 of the Clayton Act, 15 U.S.C. §15, as requiring

“antitrust injury”).

2

Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 53 n.21 (1977) (overruling per se

prohibition of vertical, intrabrand, non-price restraints and noting that “an antitrust policy di-

vorced from market considerations would lack any objective benchmarks”).

3

Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 688 (1978) (holding that the

rule of reason “focuses directly on the challenged restraint’s impact on competitive conditions”).

4

Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1, 20 (1979) (limiting use of per se analysis of

horizontal agreements to those which “almost always tend to restrict competition and decrease

output”).

1

82 Antitrust Law Journal No. 1 (2018). Copyright 2018 American Bar Association. Reproduced

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