Antitrust Decisions Of The U.S. Supreme Court, 1967 To 2007

Article by Douglas Ginsburg and Leah Brannon

Competition Policy International (CPI), Vol. 3, No. 2, Autumn 2007, pp. 3-23. CPI is a peer-reviewed, academic journal (print ISSN 1554-0189; online ISSN 1554-6853) that covers competition law, economics, and policy. More information about CPI can be found at www.globalcompetitionpolicy.org.

Article Abstract

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:

decided antitrust cases in favor of defendants;

issued antitrust opinions subscribed to by two-thirds or more of the Justices;

decided antitrust cases in the manner recommended by the Solicitor General; and

expressly featured economic analysis in its reasoning.

There is now broad and non-partisan agreementóin academia, the bar, and the courtsóregarding 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...