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Business Articles Awards > General Antitrust

It Is All About the Facts: Commentary on the Current State of Antitrust Enforcement in Health Care

Leigh L. Oliver, 48 Loyola University Chicago Law Journal, May 2017

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Readers’ vote will close on February 9, 2018. Readers’ vote will allow you to nominate 1 article for each of the Awards, i.e., 10 Academic articles, 10 Business articles, and the best Soft Laws. The readers’ short-list of Academic and Business Articles will be communicated to the Board together with the 20 articles nominated by the Steering Committees. The Board will decide on the award-winning articles. Results will be announced at the Awards ceremony to take place in Washington DC on the eve of the ABA Antitrust Spring Meeting on April 10, 2018.

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This Essay specifically addresses the conference presentations of Professors Barak Richman and Tim Greaney, but also shares my own
views on the current state of antitrust enforcement in health care, including current challenges and potential reforms.

In summary, both Professors Richman and Greaney seemed critical of the antitrust laws and argued that the antitrust laws failed to prevent the level of concentration that we see in the health care industry today, or that they are poorly suited to regulate anticompetitive conduct related to the pharmaceutical industry. I disagree. Antitrust jurisprudence is an enforcement tool available to state and federal agencies, as well as to private citizens. And agencies and private citizens use these laws in traditional and novel ways to challenge anticompetitive conduct. The outcome of enforcement actions, however, depends in large part on the specific facts and circumstances of each individual case. This is the benefit of the case-based nature of the competition regulation and this approach arguably prevents antitrust laws from having a chilling effect on growth, innovation, and the achievement of economic efficiencies.

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