restrictive practices and monopoly power.
Although activities such as price-fixing still
came under attack, other kinds of business
cooperation flourished and even received offi-
cial encouragement during the early years of the
NEW DEAL. This pattern lasted for a good 15
years, intensifying after the
STOCK MARKET crash
of 1929.
Following what historians called the era of
neglect, antitrust made a resurgence. In 1935 the
U.S. Supreme Court struck down President
Franklin D. Roosevelt’s National Industrial
Recovery Act, which coordinated industry-wide
output and pricing, in ALA Schechter Poultry
Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837,
79 L. Ed. 1570. The decision radically affected
New Deal–era policy. The fo llowing year, Con-
gress passed the Robinson-Patman Act in an
attempt to make sense of the Clayton Act’s bans
on price discrimination. The Robinson-Patman
Act explicitly forbade forms of price discrimina-
tion, in order to protect small producers from
extinction at the hands of larger competitors. By
1937, economic decline brought federal antitrust
enforcement back with a vengeance, as Roose-
velt’s administration began an extensive investi-
gation into monopolies. The effort resulted in
more than 80 antitrust suits in 1940 alone.
One federal court case in this period, United
States v. Aluminum Co. of America, 148 F.2d 416

Clayton Act. Because only anticompetitive stock
purchases had been forbidden, businesses
would circumvent the Clayton Act by targeting
the assets of their rivals. U.S. Supreme Court
decisions had also undermined the law by
allowing businesses to transfer stock purchases
into assets before the government filed a
complaint. The Celler-Kefauver amendment
closed these loopholes.
The U.S. Supreme Court and
Evolving Doctrine
Vigorous enforcement of antitrust legislation
created an immense bo dy of
CASE LAW. After 1950,
U.S. Supreme Court decisions did more than
anything else to shape antitrust doctrine. Two
competing outlooks emerged. One regarded
markets as fragile, easily distorted by private firms,
and readily correctable through public interven-
tion. E conomic efficiency mat tered less, in this
view, th an the belief in the antitrust doctrine’s
ability to meet social andpolitical goals. Opponents
saw business rivalry as being generally healthy.
They doubted that public intervention could cure
defects, and they emphasized the self-correcting
ability o f markets to erode private restraints and
private power. This outlook opposed the use of
antitrust measures except to stop behavior that
clearly harms the e fficien cy of bu siness .
The most aggressive doctrine was developed

of Appeals for the 7th Circuit, criticized the
Court’s use of “ per se” tests to invalidate vertical
price agreements between competitors or be-
tween sellers and buyers, arguing that such
agreements can be efficient.
The U.S. Supreme Court heeded this
criticism in State Oil Co. v. Khan, 522 U.S. 3,
118 S. Ct. 275, 139 L. Ed. 2d 199 (U.S. 1997).
Relying heavily on an appellate opinion penned
by Judge Posner, the high co urt overruled a 29-
year-old precedent that declared all vertical
maximum price-fixing arrangements to be per
se violations of the Sherman Act. Vertical
maximum price-fixing arrangements, like the
majority of commercial arrangements that are
subject to antitrust laws, should be evaluated
under the rule of reason, the Court wrote. The
rule-of-reason analysis will effectively identify
those situations in which vertical maximum
price-fixing amounts to anticompetitive con-
duct, by allowing courts to evaluate a variety of
factors, according to the Court. These factors
include specific information about the relevant
business; the condition of the business before
and after the restraint was imposed; and the
history, nature, and effect of the restraint.
By the mid 1970s the U.S. Court backed off
its robust interventionism. Two pivotal decisions
came in 1977, including the most important
since

explosive change occurred. The early 1980s saw
the dramatic conclusion of a historic monopoly
case against the telephone giant American
Telephone and Telegraph (AT&T) (United States
v. American Telephone & Telegraph Co., 552 F.
Supp. 131 [D.D.C. 1982], aff’d in Maryland v.
United States, 460 U.S. 1001, 103 S. Ct. 1240, 75 L.
Ed. 2d 472 [1983]). DOJ settled claims that AT&T
had impeded competition in long-distance
telephone service and telecommunications
equipment. The result was the largest divestiture
in history: A federal court severed the Bell
System’s operating companie s and manufactur-
ing arm (Western Electric) from AT&T, thus
transforming the nation’s telephone services. But
the historic settlement was an exception to the
political philosophy and the level of enforcement
that characterized the decade. As the 1980s were
ending, the DOJ dropped its 13-year suit against
International Business Machines (IBM). This
lengthy battle had sought to end IBM’s domi-
nance by breaking it up into four computer
companies. Convinced that market forces had
done the work for them, prosecutors gave up.
Throughout the 1980s, political conservatism
in federal enforcement complemented the U.S.
Supreme Court’s doctrine of non-intervention.
The administration of President
RONALD REAGAN
reduced the budgets of the FTC and the DOJ,

electronics equipment manufacturers out of
business. The Court discouraged claims that
rested on ambiguous
CIRCUMSTANTIAL EVIDENCE or
lacked “economic rationality,” suggesting that
lower courts settle these by
SUMMARY JUDGMENT.
Litigation since the 1980s
Once again proving that antitrust law never
remains static, the late 1980s and early 1990s
brought more changes in enforcement, eco-
nomic analysis, and court doctrine. At the state
level in the late 1980s, governments attacked
mergers and restraints. The U.S. Supreme Court
gave these efforts support in California v.
American Stores Co., 495 U.S. 271, 110 S. Ct.
1853, 109 L. Ed. 2d 240 (1990), upholding the
ability of state governments to break up illegal
mergers. Another trend came again from
academia, where for years critics of the Chicago
School had been re-evaluating its highly influ-
ential efficiency model. They concluded that a
proper analysis of efficiency goals showed that
efficiency demanded tighter antitrust contro ls,
not stubborn non-interven tion.
An important 1992 U.S. Supreme Court
case seemed to support this view. Eastman
Kodak Co. v. Image Technical Services, 504 U.S.
451, 112 S. Ct. 2072, 119 L. Ed. 2d 265
(hereinafter Kodak), concerned tying arrange-

But understaffed government attorneys generally
lost court cases. President
BILL CLINTON took this
activism further. Anne K. Bingaman, his appoin-
tee to head DOJ’s Antitrust Division, strength-
ened the division’s staff with 61 new attorneys,
declaring her organization to be the competition
agency. The Antitrust Division filed 33 civil suits
in 1994, roughly three times the annual number
that had been brought under Reagan and Bush.
It won some victories without going to court, in
one instance compelling AT&T to keep a
subsidiary private, but it lost a major lawsuit in
which it had claimed that General Electric had
conspired with the South African firm of
DeBeers to fix industrial diamond prices.
Congress continued to address monopolies
in legislation passed during the 1990s. Congress
passed the Telecommunications Act of 1996,
Pub. L. No. 104-104, 110 Stat. 56, to increase
competition within the telecommunications
industry and to end state-sanctioned monopo-
lies. The act required regional telephone compa-
nies (known as the Baby Bells) to share their
networks with a new generation of telecommu-
nications companies. Dozens of new companies
began as a result of the 1996 act, and disputes
emerged. During the early 2000s,
LITIGATION arose
accusing a local exchange carrier, Verizon

tial for far-reaching action, was the biggest
antitrust case since those involving AT&T and
IBM. Competitors complained that Microsoft
had been using illegal arrangements with buyers
to ensure that its Windows operating system
would be installe d in nearly 80 percent of the
world’s computers. In-depth investigations by
the FTC and DOJ followed. In July 1994, under
threat of a federal lawsuit, Microsoft entered a
consent decree that was designed to increase
competitors’ access to the market. The follow-
ing year, Microsoft launched its popular
Windows 95 operating system with an upgraded
version of its
INTERNET Explorer Web browser,
two products that the software maker said were
integrally related.
Over the next two years, the federal govern-
ment received fresh complaints that Microsoft
was again resorting to anti-com petitive practices.
The DOJ responded by suing Microsoft in the
U.S. district court for the District of Columbia,
alleging that the software maker had violated the
1994 consent decree by forcing computer
makers to install its Internet Explorer Web
browser as a pre-condition to the computer
makers having the right to sell their PCs with the
Windows 95 operating system included. Two
months later U.S. District Judge Thomas Pen-
field Jackson issued a

Microsoft Corp., 84 F.Supp.2d 9 [D.D.C. 1999]).
Jackson issued his
FINAL DECISION in April 2000.
The judge reiterated his preliminary findings
and also concluded that the same facts that
demonstrated that Microsoft had unlawfully
leveraged its operating-system monopoly to
push rival Web browsers out of the market in
violation of federal law also established Micro-
soft’s liability under analogous state antitrust
provisions (United States v. Microsoft Corp.,97
F. Supp. 2d 59 [D.D.C. 2000]).
Later that month, the court proceeded to
the remedy phase of the trial. DOJ and 18 state
attorneys general (two attorneys general had
since dropped out of the suit) asked the judge to
break the company into two parts: one com-
pany to develop and market the Windows
operating system, and the other to develop
Microsoft’s software, including its Web browser.
On June 7, 2000, Judge Jackson granted the
requested remedy, and Microsoft appealed. The
court of appeals reversed, finding that Jackson
had erroneously applied a per se analyses in
making his findings instead of the appropriate
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ANTITRUST LAW 321
“rule of reason” standard (United States v.
Microsoft Corp., 253 F.3d 34 [D.C. Cir. 2001]).
The appellate court then remanded the matter

terms United States v. Microsoft, 231 F. Supp. 2d
144 [D.D.C. 2002]). To demonstrate its
GOOD
FAITH
, Microsoft immediately unveiled several
business and product changes to comply with
the settlement, includin g Windows functionali-
ty that gives users the ability to hide Microsoft
programs like its Web browser and only see
competing products.
In the early 2000s the Supreme Court was
called upon several times to review provisions of
the federal antitrust statutes. For instance, in
Leegin Creative Leather Products v. PSKS, 551
U.S. 877, 127 S. Ct. 2705, 168 L. Ed. 2d 623
(2007), the Court reviewed a case involving
vertical price restraints. In 1911 the Court had
reviewed these types of restraints and concluded
that the restraints were per se violations of the
Sherman Act (Dr. Miles Medical Co. v. John D.
Park & Sons Co., 220 U.S. 373, 31 S. Ct. 376, 55
L. Ed. 502). In Leegin Creative Leather Products,
the Court concluded that the rule of reason
should govern these types of restraints.
FURTHER READINGS
American Bar Association, Section of Antitrust Law. 2008.
State Antitrust Enforcement Handbook. 2d ed. Chicago:
American Bar Association, Section of Antitrust Law.
Dabbah, Maher M. 2003. The Internationalisation of
Antitrust Policy. New York: Cambridge Univ. Press.

must file a notice of appeal, along with the
necessary documents, to commence appellate
review. The person against whom the appeal is
brought, the appellee, then files a brief in
response to the appellant’s allegations.
There are usually two stages of review in the
federal court and in many state court systems:
an appeal from a trial court to an intermediate
appellate court and thereafter to the highest
appellate court in the jurisdiction. Within the
appellate rules of administrative procedure,
there might be several levels of appeals from a
determination made by an administrative agency.
For example, an appeal of the decision of an
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
322 APPARENT
administrative law judge may be heard by a
reviewing body within the agency, and from that
body, the appeal may go to a trial court, such as a
federal district court. Thereafter, the appeal
might travel the same route as an appeal taken
from a judicial decision, going from an interme-
diate to a superior appellate court, or it might go
directly to a superior appellate court for review,
bypassing the intermediate stage. The rules of
appellate procedure applicable to a particular
court govern its review of cases.
Right to Appeal
There is no absolute right of appeal for all
decisions rendered by a lower court or admin-

intended to prevent the piecemeal
LITIGATION of
a lawsuit, to avoid delay resulting from
INTERLOCUTORY appeals, and to give the trial
court the opportunity to render a decision in
the case to the satisfaction of both parties,
thereby obviating the need for appeal. The
consideration of
INCIDENTAL matters, such as the
computation of interest, attorneys’ fees, or court
costs, does not prevent a judgment or order
from being appealed.
Grounds
Error is the basis for review of a FINAL DECISION
rendered by a court or administrative agency.
Error is called to the attention of a court
through the use of objections, protests made
during the course of a proceeding that an action
taken by the opposing side in a controversy is
unfair or illegal. Decisions rendered in favor of
one party at trial level are presumed by an
appellate court to be correct unless objections
have been made to the issues in question during
the trial. Failure to do so will preclude their
review on appeal. An objection must be made as
promptly and specifically as possible for each
act to which it is directed so that the court may
make an intelligent decision regarding its
merits. The trial judge rules on the objection,
and the decision is included in the trial record.

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GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
APPEAL 323
court for its consideration unless exceptional
circumstances exist to justify the appellate court
raising the issues
SUA SPONTE, on its own motion.
Exceptional circumstances mean the presence
at trial of plain error, a mistake in the
proceedings that substantially affects the rights
of the party against whom the decision has been
made and undermines the fairness and integrity
of the judicial system, causing a
MISCARRIAGE OF
JUSTICE
.
Time of Appeal

appellant fails to pay. Its amount is determined
by the court itself or by statute. The imposition
of such a bond discourages frivolous appeals. If
successive appeals are taken from an intermedi-
ate appellate court to a superior one, a new
bond is usually req uired.
Record on Appeal
The function of the appellate court is limited to
a review of the trial record sent up from the
lower court and the briefs filed by the appellant
and appellee.
AMICUS CURIAE briefs, if permitted
by the appellate court, also become part of the
record on appeal. The trial record, sometime s
called the record proper, must show the
pleadings that initiated the case, the complete
transcript (in cases of jury trial) of lower court
proceedings, the
VERDICT, and the ENTRY of the
final judgment or order. The appellant must
clearly demonstrate that the grounds for review
had been raised and unsuccessfully decided
upon at the trial level and, therefore, prejudicial
error exists to warrant the reversal of the
decision of the lower court.
In some jurisdictions, a bill of exceptions—a
written statement of the objections made by a
party to the ruling, decision, charge, or opinion
of the trial judge—must be subm itted to the
appellate court to provide a history of the trial

ground for review is not contained in it, it will
not ordinarily be considered by the court. The
assignment of errors is usually part of the notice
of appeal, the bill of exceptions, the transcript of
the record, or the brief, although in some
jurisdictions, it is a separate document.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
324 APPEAL
Appellate Brief
The appellant and appellee must file individual
briefs to aid the appellat e court in its consider-
ation of the issues presented. Failure to do so
results in a dismissal of the appeal. The facts of
the case, the grounds for review , and the
arguments relating to those questions must be
concisely stated. Any statements referring to the
trial record must be supported by an appropri-
ate reference to it.
The appellant’s brief must specifically dis-
cuss the alleged errors that entitle the appellant
to a reversal and discuss why each ruling of the
lower court was wrong, citing authority, such as
a case in which a similar point of law has been
decided or a statute that applies to the particular
point in issue. Disrespectful or abusive language
directed against the lower court, the appellate
court, the parties,
WITNESSES, or opposing
counsel cannot be used. If it is, it will be
stricken from the brief, and the costs of the brief

rule in favor of the arguing party. During the
arguments of appellant and appellee, it is not
unusual for the appellate judge to interrupt
with questions on particular issues or points
of law.
The appellant’s argument briefly discusses
the facts on which the
CAUSE OF ACTION is based
and traces the history of the case through the
lower courts. It includes the legal issues raised
by the exceptions taken to the allegedly errone-
ous rulings of the trial judge. Thereafter, the
appellee’s counsel presents arg uments in favor
of affirming the original decision.
Determination
An appellate court has broad powers over the
scope of its decision and the relief to be granted.
After reviewing the controlling issues in an
action, it may affirm the decision of the inferior
tribunal, modify it, reverse it, or remand the
case for a new trial in the lower court pursuant
to its order.
When a decision is affirmed, the appellate
court accepts the decision of the lower court
and rejects the appellant’s contention that it was
erroneously made. The modification of a
decision by an appellate court means that, while
it accepts part of the trial court’s decision, the
appellant was correct that the decision was
partly erroneous. The trial court’s decision is

Wood, Jefri. 2002. Guideline Sentencing: An Outline of
Appellate Case Law on Selected Issues. Washington, D.C.:
Federal Judicial Center.
CROSS REFERENCES
Appellate Advocacy; Appellate Court; Federal Courts;
Remand.
APPEAR
To come before a court as a party or a witness in a
lawsuit.
APPEARANCE
A coming into court by a party to a suit, either in
person or through an attorney, whether as plaintiff
or defendant. The formal proceeding by which a
defendant submits to the jurisdiction of the court.
The voluntary submission to a court’s jurisdiction.
In a criminal prosecution, an appearance is
the initial court proceeding in which a
DEFENDANT
is first brought before a judge. The conduct of an
appearance is governed by state and federal rules
of
CRIMINAL PROCEDURE. The rules vary from state
to state, but they are generally consistent. During
an appearance, the judge advises the defendant of
the charges and of the defendant’s rights,
considers bail or other conditions of release,
and schedules a
PRELIMINARY HEARING. If the crime
charged is a
MISDEMEANOR, the defendant may

one who has sued) or the defendant (the one
being sued), the term most often refers to the
action of the defendant.
The subject of appearance is closely related
to the subject of
PERSONAL JURISDICTION, which is
the court’s authority over an individual party.
An appearance is some
OVERT ACT by which the
defendant comes before the court to either
submit to or challenge the court’s jurisdiction.
Any party can appear either in person or
through an attorney or a duly authorized
representative; the party need not be physically
present. In most instances, an attorney makes the
appearance. An appearance can also be made by
filing a notice of appearance with the clerk of
the court and the plaintiff, which states that the
defendant will either submit to the authority of
the court or challenge its jurisdiction. In a lawsuit
involving multiple defendants, an appearance by
one is not an appearance for the others. Valid
SERVICE OF PROCESS is not required before an
appearance can be made.
Historically, appearances have been classified
with a variety of names indicating their manner
or significance. A compulsory appearance is
compelled by process served on the party. A
conditional appearance is coupled with condi-
tions as to its becoming or being taken as a

dant agrees that the court has the power to bind
her or him by its actions and waives the right to
raise any jurisdictional defects (e.g., by claiming
that the service of process was improper). The
defendant also waives the objection that the case
is brought in the wrong
VENUE. The defendant
does not, however, WAIVE any substantive rights
or defenses, such as the claim that the court
lacks jurisdiction over the subject matter of the
case or authority to hear the particular type of
case (e.g., a
BANKRUPTCY court will not hear
PERSONAL INJURY cases).
Special Appearance
A SPECIAL APPEARANCE is one made for a limited
purpose. It can be made, for example, to
challenge the sufficiency of the service of
process. But most often, a special appearance
is made to challenge the court’s personal
jurisdiction over the defendant. It prevents a
DEFAULT JUDGMENT from being rendered against
the defendant for failing to file a
PLEADING.(A
default judgment is an automatic loss for failing
to answer the complaint properly.)
When a defendant makes a special appear-
ance, no other issues may be raised without that
appearance’s becoming a general appearance. If
a party takes any action dealing with the merits

based on
QUASI IN REM JURISDICTION may make a
limited appearance. Quasi in rem is a Latin phrase
for a type of jurisdiction in which the court has
power over the defendant’s property because it
lies within the geographic boundaries of the
court’s jurisdiction. The presence of the property
gives the court jurisdiction over the person of the
defendant. To invoke quasi in rem jurisdiction,
the court must find some connection between the
property and the subject matter of the lawsuit.
A limited appearance enables a defendant to
defend the action on the merits, but should the
defendant lose, he or she will be held liable only
up to the value of the identified property and
not for all possible damages. A defendant who
A defendant,
accompanied by his
court-appointed
lawyer, appears before
the judge in a
Tacoma, Washington,
courtroom. In a
criminal prosecution,
an appearance is the
initial court
proceeding in which
the defendant is
advised of the charges,
bail is considered, and