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Hastings Law Journal

Abstract

Disputing the orthodox view that competition policy has always been the only legitimate normative basis for antitrust law, this Article re-examines early antitrust history and finds persistently strong commitments to common-law property rights. An analysis of legislative materials and Supreme Court opinions reveals a series of conflicts between two competing logics or paradigms-- one founded in competition policies and the other in property rights. The discovery of this fundamental and unstable tension ultimately leads this Article to conclude that both the passage of the Sherman Act and the adoption of a "rule of reason" standard were products of triumphant property logics in restraint of competition policies. Finally, in addition to developing a new approach for investigating particular areas of modem doctrine, such as vertical restraints and predatory pricing, this Article raises new questions about the relationship between the efficiency norm of modem antitrust law and the tension between competition policy and property rights.

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