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Abstract

Before courts can determine whether a defendant may have violated antitrust laws, they must first select the appropriate mode of analysis: the fact-intensive rule of reason, summary condemnation under the per se rules, or a quick look analysis. “Quick look” is intended to shorten and simplify inquiries into conduct that does not fall under the per se rules but that nonetheless has obvious anticompetitive effects.

The quick look doctrine, however, has failed to streamline antitrust litigation, and the related caselaw has failed to develop concrete or usable rules. Despite decades of litigation, the quick look doctrine remains of dubious legal pedigree, muddled application, and questionable use.

The quick look doctrine traces its origins to three Supreme Court cases that neither implemented nor even described a quick look methodology. Later Supreme Court cases seemed to (somewhat ambiguously) endorse the doctrine as a matter of theory but rejected its application in the cases before the Court. In the lower courts, quick look is frequently litigated but seldom applied. The handful of decisions where the use of quick look was dispositive tend to be inconsistent with precedent or reversed in later proceedings.

Quick look’s problems are endemic and unfixable. At bottom, quick look depends on non-economist judges ruling, as a matter of law, regarding the economic effect of challenged conduct. Most judges are properly reluctant to moonlight as amateur economists. In case after case judges reject quick look legal presumptions in favor of a fact-based rule of reason methodology. Rather than continuing with stagnant debates over the applicability of the quick look doctrine, courts should explicitly abandon the doctrine and refocus their attention on more productive questions, such as determining what evidence may satisfy a plaintiff’s burdens of proof under the rule of reason.

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