Abstract
I. Introduction This article addresses market conduct involving the disparagement of a rival or its product. Such conduct may have one of two polar-opposite effects on the competitive marketplace. To the extent that the disparagement is truthful and informative, it nurtures and fosters an environment within which competition may thrive. To the extent such disparagement is intentionally false and deceptive, it desecrates the hallowed efficiencies for which competition is so highly touted. The purpose of this article is to illustrate and discuss these polar-opposite effects from a purely microeconomic perspective. 1 To meet these ends, this article first cites and explains the United States Supreme Court's definition of "antitrust injury." 2 Next, this article explains and applies microeconomics to anticompetitive conduct. 3 Then, the article illustrates the clash between anticompetitive conduct, as defined within a microeconomic framework, and anticompetitive conduct defined by jurisprudential economics. 4 This article also explains the term jurisprudential economics, which refers to the judicial application of economic theory within an analytical framework driven by stare decisis, as exemplified by Judge Easterbrook's recent opinion in Sanderson v. Culligan International Co., 5 in which he postulates that product disparagement "is not actionable under the antitrust laws." 6 Finally, this article concludes that the intentionally false disparagement of a rival's goods or services is injurious to competition and constitutes unlawful activity under either 1 (when in combination with others) or 2, or both, of the Sherman Antitrust Act. 7 II. Antitrust Injury Antitrust injury is ...