This paper attacks, the assumption that a number of practices in high tech markets should be presumed to be legal. It was published in the Suffolk University Law Review, and can be found here.
It seeks to build on Easterbrook’s framework for designing efficient antitrust rules, and to develop a structured rule of reason framework that could apply to the new economy. It does this by: (i) distinguishing between per se rules and rule of reason standards; (ii) reviewing the arguments for and against the adoption of per se rules, in order to explain why per se rules are not appropriate for high tech markets; (iii) lastly, developing an approach that replaces per se rules with an “administrable” structured rule of reason applicable in innovation and high tech markets whenever “the practice has not proven to be pro-competitive in every case”.
The paper provides a decent overview of the discussion about rules and standards in antitrust. Further, it makes one point that, I think, should be kept in mind: the rule of reason has the advantage of allowing courts and enforcement agencies to “learn by doing” which, given the current status of our knowledge, may well be a good thing.