Revitalizing Antitrust in Its Second Century: Essays on Legal, Economic, and Political Policy

By Harry First; Eleanor M. Fox et al. | Go to book overview

antitrust. Those elements have enabled it to have such broad support in the body politic for almost a century. And we are, after all, debating policy in a democratic society, not in an aristocratic one, benevolent though its intentions may be.

The debate, therefore, should be about where the fulcrum is placed in order to reach a proper balance between allowing freedom for private decision making and intercepting conduct or transactions that may create greater concentration in markets or greater power in the hands of private enterprise. Any shift should be within a rather discrete zone between perceived extremes (yesterday's and today's).

The zone has shifted in the last ten to fifteen years. I do not suggest that we go back to the earlier era. Rather, we should move slightly away from the "efficiency is God" zone. I suggest a very modest change (on a fairly extended continuum) from today's ascendant view in balancing the dual considerations of efficiency and market power. And in the interest of reducing complexity, I urge a revitalization of the per se rule for traditionally per se conduct. 4 Courts have not so much reversed traditional per se rules of conduct (although they have done so to some extent) as they have analyzed the conduct and decided that it was not within the prescribed rule. Courts frequently in these instances have supplanted (emasculated) the role of the jury. My call for revitalization encompasses restoration of the jury's preeminent role in factfinding. 5

I respectfully submit that recent policy, and judicial implementation of it, places the balance in the wrong place and is antithetical to efficient enforcement and compliance.


NOTES
1.
Tax Reform Act of 1986, Pub. L. No. 99-514, 100 Stat. 2085 ( 1986).
2.
Attorney General Edwin Meese, III, Address Before the American Bar Association, July 17, 1985.
3.
This proposition is derived from our constitutional structure. There are, however, many divergent (and thoughtful) views on the subject. See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev.179 ( 1986), especially the discussion at page 216. For somewhat different views of principles of constitutional and statutory interpretation, see Address by William J. Brennan Jr. , Associate Justice, Supreme Court of the United States, The Constitution of the United States: Contemporary Ratification, Georgetown University, Washington, D.C. ( Oct. 12, 1985); Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol'y 59 ( 1988); Maltz, Statutory Interpretation and Legislative Power: The Case for a Modified Intentionalist Approach, 63 Tul. L. Rev. 1 ( 1988); M. Tushnet, The U.S. Constitution and the Intent of the Framers, Tikkun, vol. 1, no. 2 at 3545 ( 1986).

Judge Posner makes the additional point that the argument for a flexible, contemporary approach to interpretation of the Constitution (which might be desired because of the purposeful difficulty of the amending process) could boomerang if the interpreter

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