Reconsidering Judicial Supremacy in Antitrust
Posted: 15 Apr 2020 Last revised: 27 Apr 2021
Date Written: April 14, 2020
This paper interrogates the logical, legislative history, and common law basis of judicial supremacy in antitrust, whereby judges have reinvented the criteria by which antitrust law shapes the nature of economic coordination and thus molds markets. In so doing, the paper also generates novel insights about a more prodemocratic approach to statutory interpretation more generally.
An examination of the legislative history of the Sherman Act shows that legislators were primarily occupied with the worries that courts would either rule the statute beyond constitutional bounds, or else pervert the statute's purpose. The evidence shows that legislators deployed the phrase “restraint of trade” in order to deal with these specific expressed concerns, thus obviating the more extravagant explanation that Congress intended a wholesale delegation of economic policy-making power to the courts. Moreover, Congress made its preferred normative criteria for market governance quite clear, and did not leave them to the courts. Those criteria were to meet the antimonopoly movement’s demands by dispersing economic coordination rights rather than further concentrating them.
Finally, the paper argues that disfavor of legislative history arguments in antitrust—and beyond—are grounded not only in an unwarranted skepticism of the moral potential of democracy, but also in precisely the distribution of economic coordination rights that Chicago School thinkers propounded in antitrust and adjacent fields. In other words, the public choice theory-inflected approach to statutory interpretation and the particular market ordering it has spawned are mutually reinforcing, and lacking in independent justification. A more logically consistent approach to statutory interpretation would extend the widespread acceptance of democratic principles to market governance—which is after all an extension of political governance—and would fill gaps in interpretation through the democratic potential of the administrative state rather than through the insulated decision-making of the judicial elite.
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