Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 49 (1993)

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Cite as: 509 U. S. 209 (1993)

Stevens, J., dissenting

tition is likely to ensue.17 None of our cases disputes that proposition.

Also as a matter of economics, the Court insists that a predatory pricing program in an oligopoly is unlikely to succeed absent actual conspiracy. Though it has rejected a somewhat stronger version of this proposition as a rule of decision, see ante, at 229-230, the Court comes back to the same economic theory, relying on the supposition that an "anticompetitive minuet is most difficult to compose and to perform, even for a disciplined oligopoly," ante, at 228. See ante, at 238-243 (implausibility of tacit coordination among cigarette oligopolists in 1980's). I would suppose, however, that the professional performers who had danced the minuet for 40 to 50 years would be better able to predict whether their favorite partners would follow them in the future than would an outsider, who might not know the difference between Haydn and Mozart.18 In any event, the jury was

17 Utah Pie Co. v. Continental Baking Co., 386 U. S. 685, 696-698, and n. 12 (1967). See also Lomar Wholesale Grocery, Inc. v. Dieter's Gourmet Foods, Inc., 824 F. 2d 582, 596 (CA8 1987) (threat to competition may be shown by predatory intent, combined with injury to competitor), cert. denied, 484 U. S. 1010 (1988); Double H Plastics, Inc. v. Sonoco Products Co., 732 F. 2d 351, 354 (CA3) (threat to competition may be shown by evidence of predatory intent, in form of below-cost pricing), cert. denied, 469 U. S. 900 (1984); D. E. Rogers Associates, Inc. v. Gardner-Denver Co., 718 F. 2d 1431, 1439 (CA6 1983) (anticompetitive effect may be proven inferentially from anticompetitive intent), cert. denied, 467 U. S. 1242 (1984). See generally Board of Trade of Chicago v. United States, 246 U. S. 231, 238 (1918) (in determining whether rule violates antitrust law, "knowledge of intent may help the court to interpret facts and to predict consequences").

18 Judge Easterbrook has made the same point: "Wisdom lags far behind the market

. . . . . "[L]awyers know less about the business than the people they represent . . . . The judge knows even less about the business than the lawyers." Easterbrook, The Limits of Antitrust, 63 Texas L. Rev. 1, 5 (1984).

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