Leah Brannon, Douglas Ginsburg, Nov 05, 2007
In this article we suggest that the U.S. Supreme Court, far from indulging a pro-defendant or anti-antitrust bias, is methodically re-working antitrust doctrine to bring it into alignment with modern economic understanding. Over the last four decades, the Court has increasingly:
- (1) decided antitrust cases in favor of defendants;
- (2) issued antitrust opinions subscribed to by two-thirds or more of the Justices;
- (3) decided antitrust cases in the manner recommended by the Solicitor General; and
- (4) expressly featured economic analysis in its reasoning.
There is now broad and non-partisan agreement in academia, the bar, and the courts regarding the importance of sound economic analysis in antitrust decision making. We believe this broad consensus has contributed to both the prevalence of supermajority and even unanimous antitrust decisions and to the improved success rate of the United States when it appears either as a party or as an amicus in Supreme Court antitrust cases. In addition, because the near-consensus among academic commentators reflects a substantial rethinking of the plaintiff-friendly antitrust decisions of earlier decades, it has led to the present high success rate for defendants.