Compared to the nominations of Justices Alito, Roberts and Sotomayor, there has been little excitement for the antitrust community on the most recent Supreme Court nomination of Elena Kagan. But there is something. The WSJ Law Blog reports that while Kagan refused to “praise the Leegin decision.” Legal Times reports that in response to Senator Kohl’s questions about recent Supreme Court antitrust activity, including Leegin Creative Leather Products v. PSKS and Bell Atlantic v. Twombly, Kagan offered some thoughts on the manner in which economic theory should be incorporated into antitrust doctrine:
“There’s some question, to be sure, about how new economic understandings should be incorporated into precedent,” she said. “On the one hand, it’s clear that antitrust law needs to take account of economic theory and economic understandings, but it needs to do so in a thoughtful way.”
Thoughtfully. Can’t argue with that. Well, I guess you can. For example, one sensible reading of Leegin is precisely that it is a perfect example of how the Supreme Court can go about thoughtfully updating antitrust doctrine with new economic learning and empirical evidence and is thus worthy of the praise Kagan refuses. In the RPM context, Leegin updated an area of the antitrust law that had become an economic backwater by reflecting more modern economic thinking (and by more modern, I mean, around for 20 years) about the economics of vertical restraints and RPM specifically. Legal Times also reports that when “pressed by Kohl to give a view on the Leegin decision, Kagan said she would not “grade” the ruling and she did not elaborate on how the Court should determine a proper balance in antitrust cases.” So, lukewarm on Leegin at best, and some recognition that economic learning should be incorporated into antitrust doctrine.
Thanks to Jan Rybnicek for the pointer.