Legal Realism and the Shaping of Modern Antitrust
Emory Law Journal, Vol. 44, No. 1, 1995
69 Pages Posted: 3 Jun 2009
Date Written: June 3, 2009
This article, published in 1995, argues that legal realism has influenced antitrust decision making ever since the New Deal. Until the mid-1970s, a majority of the Supreme Court, accepting the realist concept of market coercion, created rules of per se illegality and strict merger standards. Since Sylvania (1977), the Court has largely endorsed the Chicago School's evolutionary view of the market, but has retained the early realists' insights about the judicial role. Most members of the Court have endorsed the legal process school's view of judicial legitimacy. The Court uses economic theory to guide its inquiries, but with an awareness of its institutional limitations within the larger legal system. Instead of using theory to formulate rules of legality, the Court has used it primarily to guide the application of established rules in subsidiary decisional contexts.
Keywords: antitrust, legal realism, evolution, ideology, legal process
JEL Classification: K21, L40
Suggested Citation: Suggested Citation