A Reluctant Standard-Bearer for Chicago-School Antitrust

Posted by Social Science Research Network

A Reluctant Standard-Bearer for Chicago-School Antitrust

Max Huffman (Indiana University Robert H. McKinney School of Law)

Abstract:      Justice Scalia was part of the intellectual ferment that gave rise to the deregulatory mindset in the 1970s and 1980s. He was involved in the intellectual conversations around ideas including textualist interpretive philosophy (statutes), originalist interpretation (constitutions), and free-market economic thought. Justice Scalia adopted the originalist philosophy from Judge Bork and advanced it from the pulpit of the Supreme Court. For the most part, he did not take the same leadership role in advancing the Chicago School tradition in antitrust. It would be impossible, however, in light of his long tenure on the Court and his engagement with the core intellectual philosophies that underlie much of modern antitrust, for him not to have had an impact on the body of law. And in Kodak (dissenting), Empagran (concurring), and Trinko (for the majority), he did.