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Competition Policy and Price Fixing$
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Louis Kaplow

Print publication date: 2013

Print ISBN-13: 9780691158624

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691158624.001.0001

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U.S. Lower Court Practice

U.S. Lower Court Practice

Chapter:
(p.101) 5 U.S. Lower Court Practice
Source:
Competition Policy and Price Fixing
Author(s):

Louis Kaplow

Publisher:
Princeton University Press
DOI:10.23943/princeton/9780691158624.003.0005

This chapter examines how the lower courts confront central legal questions that routinely arise in price-fixing and other horizontal-restraints cases in which the existence of an agreement is in dispute. In light of the discussion in the previous chapters, it is not surprising that the practice in lower courts is difficult to characterize—although some commentators nevertheless depict a substantially harmonious state of affairs. The problem begins with the frequent need to make inferences from circumstantial evidence, which all acknowledge to be necessary. As a consequence of the problem of defining agreement, it is difficult to know what one is trying to infer or how inferences can be made even when evidence of agreement appears to be fairly direct. Various seemingly clear rules, such as the demand for so-called plus factors, are unclear upon examination and cast serious doubt on the conventional view of the law.

Keywords:   lower courts, price-fixing cases, horizontal-restraints cases, circumstantial evidence, U.S. lower court, agreement requirement

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