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Antitrust, Law and Economics,
and the Courts

LOUIS KAPLOW


1. Introduction

In the past decade, a new picture of the antitrust landscape has
begun to emerge. The dominant emphasis of the ever more popular
view concerns the ascendance of economics in antitrust decision-
making and doctrine, particularly in Supreme Court adjudication,
which is leading the way for the lower courts. Moreover, it is not
just economic analysis in the abstract that supposedly has come to
the forefront but the strand of economic argument associated with
the Chicago School. The new insight thought to be contained in
this brand of economic analysis is allegedly responsible for the
doctrinal shifts that generally have narrowed the scope of antitrust
liability.

. . .

Simply observing a broader context [of Supreme Court deci-
sionmaking where parallel shifts are taking place]--which is vir-
tually never to be seen even in the footnotes of most recent
commentary concerning these developments in antitrust--is suf-
ficient to cast serious doubt on the explanation based on the Su-
preme Court's recent learning of economics, Chicago style. Nor
can the simple story be rescued through a broader claim suggesting

____________________
Reprinted from 50/4 Law & Contemp. Probs. 181 ( 1987).

-238-

Questia, a part of Gale, Cengage Learning. www.questia.com

Publication Information: Book Title: The Political Economy of the Sherman Act: The First One Hundred Years. Contributors: E. Thomas Sullivan - editor. Publisher: Oxford University Press. Place of Publication: New York. Publication Year: 1991. Page Number: 238.
    
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