Textualism and Section 2 of the Sherman Act: A Clear Path the Supreme Court Did Not Take

41 Pages Posted: 12 Jan 2018 Last revised: 16 Apr 2018

Date Written: September 9, 2017

Abstract

This essay examines the meaning of Section 2 of the Sherman Act, which prohibits monopolization, under the textualist guidance of Reading Law by the late Justice Scalia and Bryan Garner. This essay compiles the background material early decisions could have drawn upon and finds that to “monopolize” had a clear and consistent meaning in 1890, which only shapes some rough contours of Section 2’s prohibitions. This essay then identifies the conduct that inspired Section 2 and applies textualist canons of interpretation to characterize Section 2’s prohibitions. A review of the early decisions finds that they were productively proceeding on a textualist path until the Supreme Court had its say in 1911. This essay explains what the courts should have done differently, and what they should do now to clarify Section 2 law using the principles of textualism.

Keywords: Sherman Act, monopolization, textualism

JEL Classification: K21

Suggested Citation

Werden, Gregory J., Textualism and Section 2 of the Sherman Act: A Clear Path the Supreme Court Did Not Take (September 9, 2017). Available at SSRN: https://ssrn.com/abstract=3098836 or http://dx.doi.org/10.2139/ssrn.3098836

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