The Antitrust Jurisprudence of Neil Gorsuch

Abstract

In 2017, the U.S. Senate confirmed Neil M. Gorsuch’s nomination to serve on the Supreme Court. Like Justice Stevens before him, Gorsuch’s primary area of expertise is antitrust law. Like Stevens, Gorsuch both practiced and taught in the field before joining the bench. As a judge for the Tenth Circuit Court of Appeals, Gorsuch penned multiple substantive antitrust opinions.

His unique expertise will likely situate Gorsuch as one of the Court’s leading voices on antitrust matters for decades to come. A close examination of his prior antitrust opinions thus offers vital insight into his approach to antitrust principles and execution. This essay provides the first in-depth descriptive and prescriptive analysis of Gorsuch’s antitrust jurisprudence. While it reveals (perhaps unsurprisingly) a great deal of sophistication vis-à-vis antitrust doctrine, it also identifies several areas for improvement.

While serving on the Tenth Circuit, Gorsuch effectively expanded upon—even rewrote—existing precedent, including Justice Scalia’s notable opinion for the majority in Trinko. For normative force, Gorsuch’s jurisprudence at times rested upon logical fallacies and an unduly one-sided error-cost framework. This essay offers prescriptive suggestions for Gorsuch and other jurists to follow in future cases, with an eye toward producing a more transparent, coherent, and welfare-maximizing body of antitrust law.

Keywords: gorsuch, antitrust, neil gorsuch antitrust, gorsuch law professor, neil gorsuch supreme court antitrust, neil gorsuch trump antitrust, gorsuch trump antitrust

JEL Classification: K21, L4, L44, L5