The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond

Abstract

The U.S Supreme Court issued four antitrust decisions this term (the most it has issued since the 1989-1990 term) and seven cases over the past two years. The antitrust activity level of the Roberts Court thus far has exceeded the single case average of the Court prior to the 2003-2004 term by a significant margin. What can be said of the Roberts Court's antitrust jurisprudence? This article examines the quartet of Supreme Court decisions issued during the 2006-2007 term in an attempt to identify and characterize the antitrust philosophy of the Roberts Court. I argue that the Roberts Court decisions embrace the Chicago School of antitrust analysis and predict that the antitrust jurisprudence of this Court will increasingly reflect this influence.

Keywords: Chicago School, antitrust, Leegin, Twombly, Supreme Court, resale price maintenance, vertical restraints, Dr. Miles, Harvard School, stare decisis, Weyerhaeuser, predatory bidding

JEL Classification: B00, B30, B40, K21, L00, L40