Photo of Scott M. Abeles

Few cases in the antitrust canon have been invoked more frequently, for the wrong reasons, than the Third Circuit’s 1977 decision in Bogosian v. Gulf OilFor four decades now – culminating in the recent release of a decision certifying class in the long-running Mushrooms case – litigants and courts have cited a “presumption” or “short-cut” embedded in Bogosian and argued about whether it suffices to warrant class certification in a given case. This short-cut, however, is more fantasy than reality. 

A year before he took his seat on the Supreme Court, Justice Scalia’s future colleagues issued a decision encouraging dominant firms to behave more like that genteel, top hat wearing fellow from the Monopoly game than like any business baron commonly found in the marketplace. That decision, Aspen Skiing vs. Aspen Highlands Skiing, would later be described as the “last gasp” of the “Harvard School” of antitrust, the more interventionist branch of antitrust theorists. Twenty years later Scalia would author an opinion snuffing out that last breath, for good.