Antitrust Decisions of the U.S. Supreme Court, 1967 to 2007

24 Pages Posted: 4 Oct 2015 Last revised: 6 Oct 2015

See all articles by Leah Brannon

Leah Brannon

Cleary Gottlieb Steen & Hamilton LLP

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Date Written: 2007

Abstract

In this article we suggest that the U.S. Supreme Court, far from indulging a pro-defendant or anti-antitrust bias, is methodically re-working antitrust doctrine to bring it into alignment with modern economic understanding. Over the last four decades, the Court has increasingly: (1) decided antitrust cases in favor of defendants; (2) issued antitrust opinions subscribed to by two-thirds or more of the Justices; (3) decided antitrust cases in the manner recommended by the Solicitor General; and (4) expressly featured economic analysis in its reasoning. There is now broad and non-partisan agreement┬┐in academia, the bar, and the courts┬┐regarding the importance of sound economic analysis in antitrust decision making. We believe this broad consensus has contributed to both the prevalence of supermajority and even unanimous antitrust decisions and to the improved success rate of the United States when it appears either as a party or as an amicus in Supreme Court antitrust cases. In addition, because the near-consensus among academic commentators reflects a substantial rethinking of the plaintiff-friendly antitrust decisions of earlier decades, it has led to the present high success rate for defendants.

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

JEL Classification: K21

Suggested Citation

Brannon, Leah and Ginsburg, Douglas H., Antitrust Decisions of the U.S. Supreme Court, 1967 to 2007 (2007). Competition Policy International, Vol. 3, No. 2, pp. 3-23, 2007; George Mason Legal Studies Research Paper No. LS 15-31; George Mason Law & Economics Research Paper No. 15-41. Available at SSRN: https://ssrn.com/abstract=1075502

Leah Brannon (Contact Author)

Cleary Gottlieb Steen & Hamilton LLP ( email )

One Liberty Plaza
New York, NY 10006
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
103
Abstract Views
1,521
rank
256,558
PlumX Metrics