The Roberts Courts Antitrust Philosophy: You Say Harvard, I Say Chicago …

Josh Wright —  12 November 2007

The debate over the whether the current Supreme Court’s decisions are more accurately described as influenced by the Chicago School, the Harvard School, Post-Chicago thinking, or other influences has recently attracted a great deal of scholarship from premier antitrust scholars (e.g. FTC Commissioner William Kovacic’s article on the identifies a Chicago/Harvard double-helix structure in the intellectual foundations of antitrust law, Commissioner Rosch finds Chicago’s fingerprints on the recent SCOTUS decisions but reserves hope that this influence is diminishing in the lower courts, and Herbert Hovenkamp’s (Iowa) paper arguing that dominant firm antitrust jurisprudence reveals the prominent influence of the Harvard School).

The debate has continued as the Roberts Court has had the opportunity to make its mark on antitrust jurisprudence with its high level of activity in this area of law. The latest installment of this debate as found its home at Competition Policy International where Einer Elhauge (Harvard Law) and I chime in on the recent Roberts Court antitrust activity. Elhauge’s article concludes that the Roberts Court decisions represent the influence of the Harvard School rather than Chicagoan influence. I take the diametrically opposed and apparently contrarian view that the Roberts Court antitrust jurisprudence has incorporated the lessons of the Chicago School in my own contribution to this literature in the same issue of Competition Policy International, The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond (also available on SSRN). Here’s the abstract:

The U.S. Supreme Court issued four antitrust decisions this Term (the most it has issued since the 1989-1990 Term) and seven cases over the past two years. The antitrust activity level of the Roberts Court thus far has exceeded the single case average of the Court prior to the 2003-2004 Term by a significant margin. What can be said of the Roberts Court’s antitrust jurisprudence? This article examines the quartet of Supreme Court decisions issued during the 2006-2007 Term in an attempt to identify and characterize the antitrust philosophy of the Roberts Court. I argue that the Roberts Court decisions embrace the Chicago School of antitrust analysis and predict that the antitrust jurisprudence of this Court will increasingly reflect this influence.

The side by side publication of these articles should make for an interesting comparison of two very different perspectives on the recent cases and where the Court may be going. Go read them both.

I should also mention that the issue of Competition Policy International, along with some other great content including a symposium on Antitrust in Asia, includes an insightful analysis of Supreme Court decisions from 1967-2007 from Judge Douglas H. Ginsburg (along with Leah Brannon). Brannon and Ginsburg identify a number of trends in these decisions, including increased deference to recommendations by the Solicitor General, more consensus, and more economic reasoning. You can access the entire CPI issue here.

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