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A Response to Professor Goldberg: An Anticompetitive Restraint by Any Other Name . . .
1George Mason University School of Law
Citation Information: Review of Law & Economics. Volume 1, Issue 1, Pages 65–70, ISSN (Online) 1555-5879, DOI: 10.2202/1555-5879.1012, April 2005
- Published Online:
In ignoring the facts of the Three Tenors case and the transactions costs of legal rulemaking, Professor Goldberg would unnecessarily complicate antitrust law to the detriment of consumers. Contrary to his assertions, the FTCs opinion does not favor ownership over contract. The parties could have chosen to coordinate Three Tenors products and promote a brand, but they did not. Indeed, their contract explicitly provided otherwise. For a small class of cases in which the parties restrain basic forms of competition such as price or advertising without a legitimate claim of consumer benefit antitrust law avoids the costs of finding market power. In any event, the facts of the Three Tenors case provide a natural experiment revealing that the agreement the Commission proscribed in fact harmed consumers.