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Academic Articles Awards > General Antitrust

How Much of Health Care Antitrust is Really Antitrust?

Spencer W. Waller, Loyola University Chicago Law Journal, Forthcoming 2017

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This is article about antitrust exceptionalism. The antitrust laws are intended as laws of general applicability subject to any legislative exemptions and immunities. They are intended to be transubstantive, applying to all parties in all disputes in all sectors unless Congress has spoken to the contrary. The Supreme Court has gone so far as to refer to the antitrust laws as “the magna carta of the free enterprise system.”
It is increasingly hard to say with a straight face that these general principles apply when the antitrust laws have been applied to the health care sector. The health care sector has long maintained it is special and that application of traditional antitrust principles will produce bad results for society. Unlike most industries where variations of this argument have been quickly rejected by the courts since the earliest days of the Sherman Act, health care antitrust cases often come out differently...

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