Hot Docs vs. Cold Economics: The Use and Misuse of Business Documents in Antitrust Enforcement and Adjudication

The use of business documents to prove antitrust violations in court is quite problematic. This article identifies three classes of business documents that are used by courts and antitrust agencies to determine whether antitrust violations have occurred: Accounting documents, market definition documents, and intent documents. The use of each to prove economic injury is unsatisfactory. Principled antitrust enforcement must rely on evidence of actual economic effect, rather than inherently-misleading characterizations of business conduct.