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False Analogies to Predatory Pricing

“We are living in the age of the false, and often shameless, analogy . . . . [Analogies’] weakness is that they rely on the dubious principle that, as one logic textbook puts it, ‘because two things are similar in some respects
they are similar in some other respects.’”

Adam Cohen

“[A]nalogies prove nothing, that is quite true, but they can make one feel more at home.”

Sigmund Freud

Philosophers and policymakers have long cautioned against comparing incomparable objects or concepts. Scores of judicial opinions caution judges and litigants against comparing apples to oranges. The original idiom, as recited by such sixteenth-century luminaries as Sir Thomas More and William Shakespeare, admonished against equating apples and oysters, two items unlikely to be mistaken for each other given their obvious dissimilarities in color, texture, smell, and immediate edibility. Over time, oysters were replaced by oranges and the expression evolved to caution against confusing two types of fruit, which do in fact share some similar qualities but are quite distinct and, thus, incomparable.

The danger of false analogies goes beyond the risk of an apple lover biting into an oyster’s shell or even an orange’s peel. In common law fields, such as antitrust law, when judicial opinions create a false equivalence between disparate forms of conduct, courts risk condemning benign conduct or exonerating dangerous misconduct—denominated as false positives and false negatives, respectively. Despite the frequency and cost of false negatives, many antitrust scholars and federal judges have overemphasized the risk of false positives in antitrust jurisprudence. In so doing, they have relied on
false analogies to exonerate all manner of anticompetitive behavior. This Article explores how antitrust jurisprudence has equated apples and oysters in a way that inappropriately immunizes harmful conduct from antitrust liability. The apple is predatory pricing, the use of below-cost pricing to destroy business rivals. The oysters are antitrust claims that do not involve below-cost pricing.