Robin C. Feldman,
Designing Disruption in Pharmaceuticals, 28
B.U. J. Sci. & Tech. L.
Available at: https://repository.uchastings.edu/faculty_scholarship/1868
Antitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive. That focus is misplaced. Companies and markets don't focus on one particular act to the exclusion of all else. Business strategy em phasizes holistic, integrated planning. And market outcomes aren't determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and character istics of the market. The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on individual acts, coupled with the preponderance of the evidence standard for proving a violation, means that antitrust can't effec tively deal with what we might call probabilistic competitive harm: multiple acts, any one of which might or might not harm competi tion. Second, atomistic antitrust tends to miss synergistic competitive harm: acts which are lawful when taken individually but which combine together in an anticompetitive way. Unfortunately, modern antitrust law has strayed too far down the atomistic pathway. Courts and agencies too often take a narrow, transaction-specific focus tochallenged conduct. Instead of asking "is the overall behavior of this company reducing competition in the market," they focus on a particular merger or challenged monopolis tic practice in isolation. Courts and agencies need to move beyond atomistic antitrust and take a more holistic look at the circumstances and effects of an overall pattern of conduct. Our goal in this Article is to set out a framework for integrated antitrust, in which individ ual actions can be understood not just on their own but also as part of a comprehensive whole. Only by doing so can the legal system both return antitrust to its roots and bring antitrust into the modern context of the business decisions that courts must analyze today.
Boston University Journal of Science and Technology Law