Antitrust and the Supreme Court

By David Ramsey | Go to book overview

CHAPTER 3
The Rule of Reason

“The true test of legality is whether the restraint imposed is such as
merely regulates and perhaps thereby promotes competition or whether
it is such as may suppress or even destroy competition. To determine
that question the court must ordinarily consider the facts peculiar to
the business to which the restraint is applied; its condition before and
after the restraint was imposed; the nature of the restraint and its
effect, actual or probable. The history of the restraint, the evil believed
to exist, the reason for adopting the particular remedy, the purpose or
end sought to be attained, are all relevant facts. This is not because a
good intention will save an otherwise objectionable regulation or the
reverse; but because knowledge of intent may help the court to
interpret facts and to predict consequences.”

--Justice Louis Brandeis,
Chicago Board of Trade v. U.S.

In one respect, at least, my reading of Taft’s Addyston Pipe opinion follows that of Bork: Taft clearly “chose to argue the common law…as a way of joining the debate between Peckham and White without a directness that might have seemed presumptuous in a lower court judge.”1 But what was the nature of this debate? Prior to Taft’s Addyston Pipe opinion, the Court seemed to be moving in the direction of a strong, bright-line rule against all contracts, combinations or conspiracies in restraint of trade, in effect adopting a federal policy of complete competition at every level of interstate commerce.2 At any rate, this was the most prominent interpretation of Peckham’s majority opinion in U.S. v. Trans-Missouri Freight Association. But the direction antitrust enforcement was to take in the future would be

-27-

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Antitrust and the Supreme Court
Table of contents

Table of contents

  • Title Page iii
  • Table of Contents vii
  • Acknowledgments ix
  • Chapter 1 - The Business of the Roberts Court 1
  • Chapter 2 - The Common Law 13
  • Chapter 3 - The Rule of Reason 27
  • Chapter 4 - Monopolistic Competition 43
  • Chapter 5 - Workable Competition 59
  • Chapter 6 - The Harvard School 77
  • Chapter 7 - The Chicago School 93
  • Chapter 8 - Law and Economics at the University of Chicago 111
  • Chapter 9 - Law and Economics before the Supreme Court 141
  • Chapter 10 - Post-Chicago Antitrust 159
  • Chapter 11 - Antitrust Law and the Judicial Power 175
  • Notes 181
  • Table of Cases 238
  • Bibliography 243
  • Index 267
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