The Antitrust Philosophy of Justice Holmes

Abstract:     
At first glance, Holmes's general prominence in American jurisprudence does not appear to carry over into antitrust law. His antitrust opinions often appear to a modern reader perverse. Early in his tenure on the Supreme Court, he opined in his famous dissent in Northern Securities Co. v. United States that the Sherman Act "says nothing about competition." His private correspondence contains references to the Sherman Act as "noxious humbug" and "absurd." A survey of his antitrust opinions finds Holmes squarely against the grain of mainstream antitrust law regarding the purpose of the antitrust laws, price agreements between competitors, information exchanges among competitors, resale price maintenance, the meaning of interstate commerce, the extraterritorial application of the Sherman Act, the defense of in pari delicto, the meaning and impact of the Clayton Act, and antitrust issues involving intellectual property. This article views Holmes and his antitrust opinions as more than an amusing anachronism. The article traces Holmes's Supreme Court antitrust opinions and dissents as a well formed personal expression of a skepticism of the desirability of unbridled competition as either economic or social policy and an abiding faith in combination as the true nature of social progress.

Keywords: Oliver Wendell Holmes, antitrust, restraint of trade, monopolization, mergers, acquisitions. combination, interstate commerce, rule of reason, vertical restraints, labor, exemptions

JEL Classifications: K10, K12, K13, K21, K31, K42, L11, L12, L13, L40,

Accepted Paper Series