Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making

By Ginsburg, Douglas H. | Harvard Journal of Law & Public Policy, Winter 2010 | Go to article overview

Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making


Ginsburg, Douglas H., Harvard Journal of Law & Public Policy


Some eighty years ago, then-Professor and later-Judge Jerome Frank purported to expose what he termed "the basic legal myth"--to wit, that judges decide cases by applying legal rules to the facts before them. (1) Frank reputedly went so far as to say that a court's decision might turn upon what the judge had eaten for breakfast. (2)

Fortunately, other judges have looked beyond the breakfast table for methodologies to promote consistency and coherence in judicial decision making. In this Essay, I discuss two such methodologies--one fully achieved and the other still in the making. I refer respectively to the influence of economic analysis in remaking antitrust law and of historical originalism in shaping constitutional law.

I. ECONOMIC ANALYSIS AND THE REMAKING OF ANTITRUST LAW

Forty years ago, the U.S. Supreme Court simply did not know what it was doing in antitrust cases. The Court had read into the Sherman Act an assortment of vague and, ironically, anti-competitive social and political goals, such as protecting small traders from their larger, impersonal (and more efficient) rivals. (3) Judge Learned Hand characterized the goals of antitrust law as minimizing the "helplessness of the individual" and ensuring the "organization of industry in small units" for "its own sake and in spite of possible cost." (4)

Then, starting in the 1960s, a generation of scholars developed what has aptly been called the "new learning" in antitrust economics. (5) Phillip Areeda at Harvard Law School, Robert Bork and Ward Bowman at Yale Law School, and Richard Posner and others at The University of Chicago Law School advanced the initially controversial view that the antitrust laws should promote economic efficiency and consumer welfare rather than shield from competitive market forces those whom Justice Peckham had deemed "small dealers and worthy men." (6)

Starting in the 1970s, the Supreme Court began systematically reworking antitrust doctrine in order to bring it into alignment with the modern economic understanding of competition. In doing so, the Court has made Judge Frank's "basic legal myth" a reality. Where antitrust jurisprudence was once ad hoc and incoherent, the cases now follow simply stated legal norms. A number of trends in the Court's antitrust opinions reflect this transformation.

First, as can be seen in Figure 1, (7) the fate of defendants in antitrust cases has improved substantially with every passing decade over the past forty years:

During the decade beginning with the 1967 Term, defendants won thirty-six percent of the antitrust cases decided by the Supreme Court (sixteen of forty-four). In the next decade, defendants won forty-five percent of the antitrust cases (nineteen of forty-two), and in the decade beginning with the 1987 Term, antitrust defendants won fifty percent of their cases (nine of eighteen). During the most recent decade, defendants won all thirteen, that is, one hundred percent of the Court's antitrust cases. These figures reflect the Justices' increasing embrace of the economic approach to antitrust law, which--relative to approaches based upon amorphous sociopolitical goals--limits liability to those relatively few business practices truly inimical to consumers.

The degree of agreement among the Justices in cases won by the defendant has also increased over the past four decades:

[FIGURE 2 OMITTED]

During the decade beginning in 1967, the Court decided only twenty-five percent of all its antitrust cases (eleven of forty-four) by a supermajority of six or more Justices in favor of the defendant. Over the following two decades, that percentage rose to thirty-six percent and forty-four percent, respectively. Finally, in the decade beginning in 1997, when the Court decided all thirteen cases for the defendants, a supermajority obtained in eighty-five percent (eleven of thirteen) of the cases. Over these same four decades, the percentage of all antitrust cases that the Court decided by a supermajority in favor of the plaintiff fell from fifty-five percent to zero. …

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