Reconsidering Judicial Supremacy in Antitrust

54 Pages Posted: 15 Apr 2020 Last revised: 16 Apr 2020

See all articles by Sanjukta Paul

Sanjukta Paul

Wayne State University Law School

Date Written: March 30, 2020

Abstract

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.

Suggested Citation

Paul, Sanjukta, Reconsidering Judicial Supremacy in Antitrust (March 30, 2020). Available at SSRN: https://ssrn.com/abstract=3564452 or http://dx.doi.org/10.2139/ssrn.3564452

Sanjukta Paul (Contact Author)

Wayne State University Law School ( email )

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