The Roberts Court's Antitrust Philosophy: Chicago School, Harvard School, or Neither?

Josh Wright —  12 September 2007

Danny Sokol points to Professor Einer Elhauge’s (Harvard) forthcoming paper in Competition Policy International where he argues that recent Supreme Court antitrust jurisprudence reflects a choice in favor of the Harvard School rather than the Chicago School of antitrust analysis. I recommend Professor Elhauge’s analysis to our readers for at least two reasons. The first is that his work is always very thoughtful and worth reading, and this piece is no exception. The second reasons is that I will have a paper in the very same journal taking what amounts to the opposite position: that the Roberts Court’s antitrust jurisprudence reflects the adoption of Chicago School’s methodological commitments. Of course, this style of argument is really about matters of degree because the Chicago and Harvard approaches have experienced some convergence in some areas. I plan on posting a version of this paper in the next week or so after doing some fine-tuning this week. In the meantime, it is clear that Professor Elhauge and I agree on at least one point: recent Supreme Court antitrust jurisprudence has been a serious attempt to engage in analysis and not a simple “pro-defendant” attitude as some have erroneously suggested.

UPDATE: Hanno Kaiser at Antitrust Review highlights another interesting portion of Elhauge’s analysis.  Elhauge points out that under the Harvard School approach, the per se approach to RPM is inappropriate but argues that Justice Breyer’s dissent in Leegin on stare decisis grounds was likely “mixed up with abortion politics” rather than motivated by getting the economics right.   As readers of TOTM will know, Thom and I have blogged extensively about the errors in Justice Breyer’s analysis of vertical restraints.