ABSTRACT
The Supreme Court's Sylvania decision gives new prominence to the economic approach to antitrust law. This chapter focuses on the proper treatment of restrictions in distribution under the antitrust laws took a 180-degree turn. To understand the possible significance of Sylvania for the development of antitrust doctrine, it is necessary to go back to the government's brief in Schwinn. More interesting and problematic than the merits of Sylvania are the many questions regarding both substance and method in antitrust law that the opinion raises. Most of the antitrust rules limiting "vertical" restrictions lack an economic basis, or, more precisely, have no stronger economic basis than Schwinn's per se prohibition of nonprice restrictions in distribution. The opinion speaks as though the Rule of Reason were the normal standard for deciding antitrust cases and the per se concept the exception. The content of the Rule of Reason is largely unknown; in practice, it is little more than a euphemism for nonliability.
