Burden of Proof in U.S. Antitrust Law

Competition Policy and Antitrust

Article Snapshot


Andy Gavil


1 Issues in Competition Law and Policy (ABA Section of Antitrust Law 2008), pp. 125-157, 2009


The author argues that decisions based on economic models and theories alone are inadequate for deciding specific cases.

Policy Relevance

The lack of clarity in the allocation of burdens, presumptions and burden shifting in antitrust law makes dispute resolution in this context more complex and expensive to resolve than it would be if clearer standards were adopted.

Main Points

  • Publicly and privately initiated adversarial proceedings are the primary way that the substantive standards of antitrust law in the United States come about.
  • Burdens of pleading, production, and proof can be allocated using traditional models, economic approaches, or procedural justice models.
  • False positives in decisions tend to be reduced when a higher standard of burdens is imposed, but the consequence is often an increase in processing and information costs, and probably the risk of false positives as well.
  • The “rule of reason” first enunciated by the Supreme Court in Standard Oil in 1911 is still not applied consistently in judicial process by use of an operative model.
  • Because the Supreme Court has not clearly detailed an analysis of the “rule of reason” the lower federal courts have tried to do the job, and have also tried to address burden shifting in the process.
  • Defenses to antitrust claims resting on efficiency excuses are appropriately burdened with production, but should also probably bear the burden of proof.
  • Courts need to focus on specific issues regarding burden allocation to strike the right balance between reducing errors, direct costs, and producing just and consistent results in antitrust cases.


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