Wisconsin's Antitrust Law: Outsourcing the Legal Standard

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Publication Information

Michael P. Waxman, Wisconsin's Antitrust Law: Outsourcing the Legal Standard, 94 Marq. L. Rev. 1173 (2011)

Source Publication

94 Marquette Law Review 1173 (2011)


Since its first commentary about the Wisconsin Antitrust Act (Pulp Wood Co. v. Green Bay Paper & Fiber Co., 157 Wis. 604, 147 N.W. 1058 ((1914)) the Supreme Court of Wisconsin has regularly reiterated its policy that interpretations of the Act must follow absolutely “federal [antitrust] decisions.” This policy is driven neither by federal preemption nor by state legislative enactment or pronouncement. The Supreme Court of Wisconsin’s commentaries on this policy for almost a century since the Pulp Wood decision have provided very little counsel to state courts much less businesspersons and their legal advisors. Indeed, one may still reasonably ask whether “federal decisions” includes judicial decisions by all federal courts wherever situated and all federal agencies deciding cases, administering rules and providing “guidelines” applying “federal [antitrust] law.” Moreover, the Court has not even provided guidance as to how to resolve conflicts in the application of “federal decisions.” In an age of “activist” federal courts and administrative agencies that have upended traditional concepts and decisions of federal antitrust law, it is very important that generalized policies applying lockstep application of “federal decisions” be jettisoned and replaced by reasoned judicial decisions applying Wisconsin antitrust law. Of course, where appropriate, Wisconsin courts may choose to follow federal decisions (whatever that term means) and thereby assure that Wisconsin antitrust law comports with an overall federal antitrust design. Yet, by replacing the current inflexible policy with legal analysis that best suits the interests and needs of Wisconsin’s citizenry Wisconsin courts may effectively steer a course that avoids the antitrust activism that roils the federal courts and federal administrative agencies and thereby provide security in long term judicial interpretations.