Article by Thomas C. Arthur
The time has come for a new approach to antitrust. The prevailing ‘constitutional’ view of the antitrust statutes as a standardless delegation to the federal courts to make national competition policy has failed. The law in each major antitrust field is in disarray. None of the nostrums proffered by the competing ‘schools' to ‘rationalize’ antitrust policy will end this costly confusion.
None can. The ‘constitutional’ approach to antitrust is fatally flawed. Economic policymaking is not an appropriate judicial task. Antitrust cases typically involve imperfectly understood business practices whose competitive effects are disputed by reputable economists and often pose controversial normative choices that require the weighing of economic concerns against competing social values. Yet the prevailing view of the antitrust statutes requires the judiciary, and especially the Supreme Court, to fashion from its members' inevitably different, personal social and economic judgments a coherent body of law governing these sophisticated, imperfectly understood, and often controversial business practices.
Contemporary antitrust law reflects the inherently political, value-laden, and ultimately intractable nature of this task. Despite some of its adherents' claims that the rationalization of antitrust doctrine is at hand, neither the perceived ascendancy of the Chicago School nor the increased use of economic analysis in antitrust cases has rendered the judicial task more certain. Chicago teachings are applied in some cases but not in others. As a result, antitrust doctrine remains incoherent, internally inconsistent, and indeterminate, and courts continue to reach discordant results on similar facts.
This doctrinal confusion is the inherent consequence of the constitutional approach to antitrust. Without meaningful statutory standards to guide decisionmaking, only a judicial consensus on the normative and economic questions in antitrust can produce doctrinal unity. But such a consensus is unlikely in a pluralist society. Certainly, none now exists. As Judge Posner observed, differences over antitrust goals and economics have created ‘three warring camps' separated by ‘deep and at the moment unbridgeable divisions in ethical, political, and economic thought.’ The first camp is separated from the others on social and political grounds. It holds fast to the credo that antitrust should serve populist values (even at the expense of economic ones if need be) and resists economically-based attacks on the Warren Court's antitrust doctrines, especially those doctrines favoring deconcentration, autonomy, and business opportunity for ‘little guys.’ The other camps disagree, arguing that the use of noneconomic factors confuses and distorts antitrust decisionmaking, which can be coherent only if limited to the sole objective of economic efficiency. But while they agree on the efficiency goal, they continue to disagree over the economic theory necessary to reach it, dividing roughly, as Judge Posner notes, into ‘a ‘Harvard School,’ prone to find monopolistic practices, and a ‘Chicago School,’ which believes the same practices to be for the most part procompetitive.'
Recent scholarly debates in antitrust have echoed the political ones, complete with name calling and allegations of bad faith. This should not be surprising; under the constitutional approach, there is no real difference between the camps. The disputes in each are over policy, not law. Under the constitutional approach to antitrust, there is no statutory source of arguably correct answers around which a legal debate can form. All three schools agree that the statutes provide no real answers, and that precedents should not stand in the way of the judicial adaptation of policy to new learning.
While all the schools decry the confusion, none has proposed any solution, short of persuading everyone that its view is correct. Yet, none has thought to reexamine the jurisprudential assumptions that lead it to accept uncritically the constitutional approach to the antitrust statutes. Thus, although the constitutional approach to antitrust raises the same concerns of institutional competence and constitutional legitimacy, there is no counterpart in antitrust to the long running tempest in constitutional law over the legitimacy of wholesale judicial lawmaking—even though it is a natural topic for inclusion in the continuing debates over antitrust fundamentals.
There should be such a debate. Antitrust lawyers have uncritically accepted the constitutional approach because they share flawed underlying assumptions about law. Regardless of their school, they share an excessive faith in the pragmatic and instrumentalist ideas about law and judging that were formulated in the first half of this century in reaction to nineteenth century legal conceptualism. Although these ideas were a major contribution to modern concepts of law, they have their own weaknesses, especially the naive faith in the superiority of judges' ‘flexible’ and unguided, but hopefully ‘sensitive,’ balancing of social interests over more specific legal standards. This relaxed attitude toward wholesale judicial policymaking fails to recognize either the questionable legitimacy of unelected judges making society's basic policy choices, or the reality that standardless, political decisionmaking undermines a coherent and stable rule of law. If antitrust law is ever to be rationalized, the unlimited discretion of the constitutional approach must be replaced with binding legal standards that constrain judicial and jury discretion.
In short, the only way courts can produce stable, rational antitrust law is to replace the constitutional approach with a statutory approach that avoids the excesses of both classical formalism and naive instrumentalism. Under a statutory approach, the federal courts would once again treat each antitrust act as an ordinary statute to be given a settled, workable construction under which courts could decide cases consistently, with an acceptable level of litigation costs, and in accordance with the enacting Congress's basic policy choices.
This Article will demonstrate the superiority of the statutory approach for producing more stable and consistent antitrust law. Part I details the development of the constitutional approach to antitrust, demonstrating how the rise of the pragmatic and instrumentalist view of law led to the displacement of the original statutory approach to antitrust. Part II illustrates that the constitutional approach fundamentally cannot produce workable antitrust law. It summarizes both the doctrinal disarray that continues to plague each major area of antitrust law and the irreconcilable policy prescriptions of the contending antitrust ‘schools.’ Part III presents an alternative, statutory approach to antitrust that employs realistic statutory construction and legal rulemaking techniques to curtail excessive judicial discretion in antitrust adjudication. Such an approach would restore the traditional rule of law and political legitimacy values displaced by the constitutional approach. This Part details the techniques that I have previously employed to produce a workable legal standard for resolving all cases arising under Section 1 of the Sherman Act, and it details the agenda for extending the statutory approach to the remaining antitrust provisions.
About the Author
Thomas C. Arthur. Professor, Emory University School of Law; Member, Academic Staff, Emory Law and Economics Program; A.B. 1968, Duke University; J.D. 1971, Yale University.
Citation
62 Tul. L. Rev. 1163 (1988)