Legal Process and the Past of Antitrust

Abstract:     
This essay examines the quality of Supreme Court antitrust opinions by reference to the standards of jurisprudence developed by the Legal Process School. Antitrust is usually described as a delegation of authority to the federal courts to create a body of common law to interpret and develop the broad and quasi-constitutional language that Congress used in the Sherman Act and subsequent statutes. The Legal Process School provides a powerful lens in viewing that body of common law adjudication. Looking at antitrust though this lens, we suggest that specific rules of antitrust doctrine have succeeded when they have been the subject of reasoned elaboration by the Supreme Court, openly and fairly confronting the legal and policy questions before it, and creating a reasonably stable body of precedent that is accepted by government institutions and private parties as a basis for planning and conducting economic affairs. Measured against this standard, we believe that the Supreme Court has enjoyed a few shining successes and a greater number of dismal failures. These failures either led to continued warfare among the lower courts, the agencies, and the commentators, or forced the government and private parties to find non-adjudicative ways to reach stable and predictable rules to guide market behavior.

Keywords: jurisprudence, legal process, antitrust, price fixing, resale price maintenance, monopolization, mergers, tying, group boycotts

JEL Classifications: L40, L 41, L42, L43, L44, L49, K21, L41, K42

Accepted Paper Series