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The Roberts Court and the Limits ofAntitrust

THOMAS A. LAMBERT

One often hears two things about the Roberts Court’s treatment of antitrust[1]. The first is that the Court has displayed a greater interest in antitrust than its predecessor. That seems accurate. Whereas the Rehnquist Court decided one antitrust case from 1993 to 1995, one each year from 1996 through 1999, and none from 2000 to 2003, the Roberts Court issued seven antitrust decisions in its first two years alone. Whatever its cause, there does seem to be an uptick in enthusiasm for antitrust on the current Supreme Court.

The second oft-heard observation about the Roberts Court’s antitrust decisions is that they betray a significant probusiness (or anticonsumer) shift on the Court. For example, noted legal scholar Erwin Chemerinsky, who recently dubbed the Roberts Court “the most pro-business Supreme Court there has been since the mid-1930s,”[2] has characterized the Court’s antitrust decisions as “favoring business over consumers.”[3] While Chemerinsky claims no antitrust expertise, antitrust experts have endorsed this view. For example, in 2008 William Kolasky, a former deputy assistant attorney general in the Antitrust Division of the US Department ofJustice and an associate editor ofAntitrust observed:

Our Supreme Court, especially under the leadership of Chief Justice John Roberts, seems equally intent on cutting back on private enforcement. It has been more than fifteen years since the Supreme Court last decided an antitrust case in favor of a plaintiff. Over this fifteen-year period, plaintiffs have gone 0-for-16, with not a single plaintiff winning an antitrust case in the Supreme Court since the first George Bush was president. This record led Antitrust to ask in its last issue whether the Supreme Court’s recent antitrust decisions represent “The End of Antitrust as We Know It?"[4]

The central claim of this chapter is that this second common assertion about the Roberts Court’s antitrust jurisprudence—that it is probusiness and anticonsumer and represents a radical departure from the past—reflects a misunderstanding of the antitrust enterprise. As a body of law regulating business conduct for the benefit of consumers, antitrust is inherently limited. Once one accounts for the limits of antitrust, the rulings of the Roberts Court, rather than “favoring business over consumers,” seem calculated to maximize antitrust’s effectiveness, to the ultimate benefit of consumers. Specifically, the Roberts Court’s antitrust cases embrace a decision-theoretic approach that seeks to minimize the sum of the decision and error costs that inevitably result from antitrust adjudication.

  • [1] This chapter is adapted from Thomas A. Lambert, The Roberts Court and the Limits ofAntitrust,52 B.C. L. Rev. 871 (2011).
  • [2] Erwin Chemerinsky, An Overview of the October 2007 Supreme Court Term, 25 Touro L. Rev.541, 545 (2009).
  • [3] Erwin Chemerinsky, The Supreme Court: Sharp Turn to the Right, Cal. Bar J. (Aug. 2007).
  • [4] William Kolasky, Reinvigorating Antitrust Enforcement in the United States: A Proposal, 22Antitrust 85, 86 (2008).
 
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