The Foreign Trade Antitrust Improvements Act: Do We Really Want to Return to American Banana?

It keeps getting worse and worse. Over the past three and a half decades, the Supreme Court has made countless changes to substantive antitrust doctrine, making successful assertion of an antitrust claim more and more difficult. We have known for at least a century—at least since the Standard Oil decision—that the language in section 1 of the Sherman Act, providing that “every contract, combination . . . , or conspiracy, in restraint of trade . . . , is declared to be illegal” is not to be read literally. “Every” does not mean “every.” It means only “some”—generally, only those restraints of trade which are “unreasonable.” The procedural obstacles facing a plaintiff even hoping for its day in court, to attempt to prove the harms it suffered from a defendant’s anti-competitive behavior, have also gotten much higher. Section 4 of the Clayton Act provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover threefold the damages by him sustained . . . .” But we know that this language is also not to be taken literally. Once again, “any” only means “some.” There are numerous limitations with respect to the persons who may sue, including in particular requirements for showing standing and antitrust injury