Antitrust Law and the Judicial
“Antitrust must be understood as the political judgment of a nation
whose leaders had always shown a keen awareness of the economic
foundations of politics. In this respect, the Sherman Act was simply
another manifestation of an enduring American suspicion of
What Happened to the Antitrust Movement?
It should perhaps come as no surprise that law and economics scholars tend to over-emphasize the role played by economic theory in guiding and shaping the Court’s antitrust jurisprudence. Reading contemporary commentators on antitrust law, one is likely to be struck by the degree to which the conversation remains focused on the minutiae of the field, quibbling over economic analyses employed in this or that case. There are indeed few examples of a commentator rising to a sufficiently lofty viewpoint to survey the entirety of the field and begin to ask questions of an unapologetically general nature, a deficiency which this study has hoped to remedy, at least in part.
In the preceding chapters we have sought to draw out the role persistently played by the judiciary in shaping, reviewing, and reforming antitrust law. From its initial attempts to incorporate the precepts of the common law, through its adoption of the rule of reason, its flirtation with corporatism and collectivization, its experimentation with per se regimentation, and its eventual return to rule of reason analysis, the Court has consistently played an important role in bolstering support for, and defining the limits of, competition in the