31 Pages Posted: 7 Mar 2017 Last revised: 10 May 2017
Date Written: March 6, 2017
In early 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 area before joining the bench. As a Tenth Circuit judge, 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 doctrine. 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, it also identifies several areas for improvement.
This article explains that as a Tenth Circuit judge, 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 rests upon logical fallacies and an unduly one-sided error-cost framework. This essay critiques that reasoning. In response, it 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
Suggested Citation: Suggested Citation
Newman, John M., The Antitrust Jurisprudence of Neil Gorsuch (March 6, 2017). Florida State University Law Review, Forthcoming; University of Memphis Legal Studies Research Paper No. 164. Available at SSRN: https://ssrn.com/abstract=2928414 or http://dx.doi.org/10.2139/ssrn.2928414