Reconsidering Judicial Supremacy in Antitrust
54 Pages Posted: 15 Apr 2020 Last revised: 16 Apr 2020
Date Written: March 30, 2020
This paper reconsiders the foundations of judicial supremacy in antitrust, which rests ultimately upon the claim that the Sherman Act is a "common law statute." The common law statute thesis is that Congress delegated to judges the power to invent the criteria by which the law will allocate economic coordination rights under antitrust law. But Congress intended no such fundamental delegation of law-making power to the judiciary, as a reconsideration of the legislative history — informed by an examination of the concepts invoked in key legislative deliberations — shows. Notably, the massive influence of Chicago School law and economics in the domain of antitrust law has been underwritten by this judicial self-empowerment.
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