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The Quiet Revolution in U.S. Antitrust Law

U. Queensland L.J., Vol. 26, pp. 27-37, 2007

Cornell Legal Studies Research Paper No. 07-023

12 Pages Posted: 13 Nov 2007  

George Alan Hay

Cornell University - Law School


In this paper, I report on a series of recent decisions in antitrust cases by the U.S. Supreme Court. While each decision, read separately, may be only of moderate interest (even to a U.S. audience), the slate of decisions, looked at in its entirety, conveys a significant message, and one that may have meaning for scholars and practitioners in Australia and other jurisdictions outside the U.S. I would suggest that a quiet revolution is occurring in which the arguments economists have been making for nearly fifty years have suddenly been embraced by both the left and the right on the Court. The revolution is not yet complete; there is still substantial tidying up to do. But it will not take long before the entire corpus of antitrust has been transformed to fit the consumer welfare model with the added feature that it has been tailored to a world in which general purpose federal judges and lay juries (unless put on a very tight leash) can make mistakes which not merely can result in an injustice in the particular matter under litigation, but also can have significant dampening effects on the willingness of large, efficient firms to use their efficiency to compete vigorously. The fact that the law is catching up to a body of defendant-friendly economic theory that is fifty years old at about the same time that economic theory has begun to move in a direction that is more plaintiff-friendly is an ironic footnote to the story.

Suggested Citation

Hay, George Alan, The Quiet Revolution in U.S. Antitrust Law. U. Queensland L.J., Vol. 26, pp. 27-37, 2007; Cornell Legal Studies Research Paper No. 07-023. Available at SSRN:

George Hay (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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