Technocracy and antitrust

Texas Law Review

Volumn 86, Issue 6, 2008, Pages 1159-1222

  Crane, Daniel A ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b YESHIVA UNIVERSITY   (United States)

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EID: 44649098126     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (442)

1. See generally RICHARD HOFSTADTER, What Happened to the Antitrust Movement?, in THE PARANOID STYLE IN AMERICAN POLITICS AND OTHER ESSAYS 188, 195-96 (1966) ("The antitrust movement and its legislation are characteristically American. . . . The idea of competition as ameans of social regulation-as an economic, political, and moral force-has grown stronger roots in the United States than elsewhere, partly because it has had little to compete with in the way of aristocratic, militaristic, or labor-socialist theories.").
2. See, e.g., 7 HAROLD U. FAULKNER, THE ECONOMIC HISTORY OF THE UNITED STATES: THE DECLINE OF LAISSEZ FAIRE 1897-1917, at 177-78 (1951)
3. (describing popular magazine articles attacking trusts from 1902 to 1907); ROBERT HIGGS, CRISIS AND LEVIATHAN: CRITICAL EPISODES IN THE GROWTH OF AMERICAN GOVERNMENT 111 (1987) (discussing the political impact of muckraking journalism).
4. For the Chicago School perspective on antitrust, see generally Herbert Hovenkamp, Antitrust Policy After Chicago, 84 MICH. L. REV. 213, 215-16 (1985)
5. [hereinafter Hovenkamp, Antitrust Policy]; Herbert Hovenkamp, Post-Chicago Antitrust: A Review and Critique, 2001 COLUM. BUS. L. REV. 257, 266-67;
6. John E. Kwoka, Jr. & Lawrence J. White, Introduction to THE ANTITRUST REVOLUTION: ECONOMICS, COMPETITION, AND POLICY 1, 1-4 (John E. Kwoka, Jr. & Lawrence J. White eds., 4th ed. 2004);
7. and Richard A. Posner, The Chicago School of Antitrust Analysis, 127 U. PA. L. REV. 925, 925-28 (1979).
8. See generally WILLIAM E. AKIN, TECHNOCRACY AND THE AMERICAN DREAM: THE TECHNOCRAT MOVEMENT, 1900-1941, at ix-xi (1977) (summarizing the rise and fall of the technocratic movement).
9. Id. at 1.
10. Id. at 3.
11. Id. at x. In his influential book arguing for technocratic- administrative approaches, James Landis argued that laissez-faire solutions had already come to an end.
12. See JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 8 (1938) ("[A]s the demands for positive solutions increased and, in the form of legislative measures, were precipitated upon the cathodes of governmental activity, laissez faire-the simple belief that only good could come by giving economic forces free play-came to an end.").
13. AKIN, supra note 4, at xi.
14. Samuel R. Bagenstos, The Americans with Disabilities Act as Risk Regulation, 101 COLUM. L. REV. 1479, 1482 (2001).
15. Ch. 647, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§ 1-7 (2000 & Supp. V 2005)).
16. Ch. 311, 38 Stat. 717 (1914) (codified as amended at 15 U.S.C. §§ 41-58 (2000 & Supp. V 2005)).
17. Ch. 323, 38 Stat. 730 (1914) (current version at 15 U.S.C. §§ 12-27 (2000 & Supp. V 2005), 29 U.S.C. §§ 52-53 (2000 & Supp. II 2002)).
18. See MARTIN J. SKLAR, THE CORPORATE RECONSTRUCTION OF AMERICAN CAPITALISM, 1890-1916: THE MARKET, THE LAW, AND POLITICS 357, 352-57 (1988) ("It was, in Roosevelt's mind, the progressive response to modern industrial conditions that, by implementing reforms that populists and socialists may have initiated or advocated, sustained continuing material progress within a framework of a market society, private property, and the American democratic tradition.").
19. See id. at 367 (describing President Taft's subsequent divergence from Roosevelt's ideas regarding the government's role in controlling the private sector and that Taft "ultimately reverted to judicial supremacy in the regulation of corporations, or the private sector, in administering the market, subject to a secondary policing by the government," a policy break made overt after the "Supreme Court's Rule of Reason decisions in May 1911").
20. Id. at 425.
21. HOFSTADTER, supra note 1, at 188.
22. See id. at 189 (noting that historians dropped the subject of antitrust "at or around 1938 . . . because there is no longer an antitrust movement" and they ignored antitrust "for the same reason the public ignores it: it has become complex, difficult, and boring").
23. Id. at 218-25.
24. Id. at 194.
25. Id. at 235.
26. Id. at 230-32. Arnold took over the reins of the Antitrust Division from Robert Jackson in March 1938. SPENCER WEBER WALLER, THURMAN ARNOLD: A BIOGRAPHY 83 (2005).
27. THURMAN W. ARNOLD, THE FOLKLORE OF CAPITALISM 207-29 (Beard Books 2000) (1937); see also WALLER, supra note 21, at 69 ("Arnold . . . ridiculed the antitrust laws as empty symbolic vehicles designed to assuage popular fears of bigness and power without actually constraining the behavior of the modern business corporation.").
28. HOFSTADTER, supra note 1, at 230-32. See generally Spencer Weber Waller, The Antitrust Legacy of Thurman Arnold, 78 ST. JOHN'S L. REV. 569 (2004) (discussing Arnold's impact on antitrust). For a contrary view on the political nature of some of Arnold's enforcement actions, see Daniel A. Crane, The Story of United States v. Socony-Vacuum: Hot Oil and Antitrust in the Two New Deals, in ANTITRUST STORIES 91, 117-18 (Eleanor M. Fox & Daniel A. Crane eds., 2007) (discussing the Roosevelt Administration's opposition to Arnold's aggressive antitrust-enforcement policy post-Socony).
29. Pub. L. No. 94-435, 90 Stat. 1383 (codified as amended in scattered sections of 15, 18, 28 U.S.C).
30. Daniel A. Crane, Antitrust Antifederalism, 96 CAL. L. REV. 1, 50-51 (2008).
31. See Posner, supra note 3, at 925-28 (describing pre-Chicago School interventionist views).
32. See, e.g., Bruce Abramson, Intellectual Property and the Alleged Collapsing of Aftermarkets, 38 RUTGERS L.J. 399, 407 (2007) (asserting that Ronald Reagan ended what was, "by general consensus, the most oppressive era of American antitrust enforcement" when he "arrived in Washington intent upon unshackling America's markets," followed soon thereafter by policy makers and courts shifting their views favorably toward Chicago School economics).
33. See, e.g., Jonathan B. Baker, Competition Policy as a Political Bargain, 73 ANTITRUST L.J. 483, 483 (2006) (commenting on the "decline in the political salience of competition policy over the 20th century" and observing that "modern Presidential candidates rarely mention the antitrust laws").
34. See generally SKLAR, supra note 13, at 1-40 (providing a history of the relevant period).
35. Previous studies have concluded that Congress exercises comparatively little control over the antitrust agencies. See Evan J. Ringquist, Jeff Worsham & Marc Allen Eisner, Salience, Complexity, and the Legislative Direction of Regulatory Bureaucracies, 13 J. PUB. ADMIN. RES. &THEORY 141, 149 (2003) (characterizing antitrust enforcement as a low-salience and high-complexity enterprise over which Congress exercises comparatively little oversight);
36. M. Albert Vachris, Federal Antitrust Enforcement: A Principal-Agent Perspective, 88 PUB. CHOICE 223, 236 (1996) ("[W]hile congressional oversight does play a role in the determination of bureaucratic behavior, the Congress does not, in effect, dominate the [antitrust] bureaucracy."). Congress has not made a major legislative intervention in antitrust in over thirty years. For the first eighty-five years of American antitrust history, Congress intervened about once every generation-roughly once every twenty years-injecting significant legislative direction into the antitrust enterprise: 1890 (Sherman Act, ch. 647, 26 Stat. 209 (1890)); 1914
37. (Federal Trade Commission Act, ch. 311, 38 Stat. 717 (1914) and Clayton Act, ch. 323, 38 Stat. 730 (1914)); 1933-1937 (National Industrial Recovery Act, ch. 90, 48 Stat. 195 (1933), invalidated by A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Robinson-Patman Act, ch. 592, 49 Stat. 1526 (1936); and Miller-Tydings Act, ch. 690, tit. 8, 50 Stat. 673, 693 (1937) (repealed 1975)); 1950 (Celler-Kefauver Act, ch. 1184, 64 Stat. 1125 (1950)); 1975-1976 (Consumer Goods Pricing Act of 1975, Pub. L. No. 94- 145, 89 Stat. 801 and Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No. 94-435, 90 Stat. 1383). Congressional interventions since 1976 have been relatively narrower and more issue specific and technical.
38. See, e.g., Foreign Trade Antitrust Improvements Act of 1982, Pub. L. No. 97-290, 96 Stat. 1246 (specifying the jurisdictional reach of U.S. antitrust law as to foreign commerce).
39. United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1898), aff'd, 175 U.S. 211 (1899).
40. See WILLIAM HOWARD TAFT, THE ANTI-TRUST ACT AND THE SUPREME COURT (1914). Taft discussed antitrust in his March 4, 1909 inaugural address. President William Howard Taft, Inaugural Address (Mar. 4, 1909), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25830. Taft declared that he hoped "to be able to submit at the first regular session of the incoming Congress, in December next, definite suggestions in respect to the needed amendments to the antitrust and the interstate commerce law and the changes required in the executive departments concerned in their enforcement." Id.
41. SKLAR, supra note 13, at 33, 90.
42. President Jimmy Carter, The State of the Union Address Delivered Before a Joint Session of the Congress (Jan. 23, 1979), available at http://www.presidency.ucsb.edu/ws/index.php?pid=32 657. President Carter said: "We must also fight inflation by improvements and better enforcementof our antitrust laws and by reducing government obstacles to competition in the private sector."
43. Id. Between Taft and Carter's last mention in 1979, antitrust appeared in nineteen State of the Union addresses: Wilson (1913); Hoover (1930, 1931, 1932); Roosevelt (1934, 1937, 1938, 1939, 1944, 1945); Truman (1947, 1948, 1949, 1950, 1953); Eisenhower (1961); Kennedy (1962); Ford (1976); and Carter (1978).
44. See, e.g., President Jimmy Carter, The State of the Union Address Delivered Before a Joint Session of the Congress (Jan. 19, 1978), available at http://www.presidency.ucsb.edu/ws/index.php?pid=30856; President Gerald Ford, Address Before a Joint Session of the Congress Reporting on the State of the Union (Jan. 19, 1976), available at http://www.presidency.ucsb.edu/ ws/index.php?pid=5677
45. [hereinafter Ford's 1976 State of the Union]; President John F. Kennedy, Annual Message to the Congress on the State of the Union (Jan. 11, 1962), available at http://www.presidency.ucsb.edu/ws/index.php?pid=9082
46. [hereinafter Kennedy's 1962 State of the Union]; President Dwight D. Eisenhower, Annual Message to the Congress on the State of the Union (Jan. 12, 1961), available at http://www.presidency.ucsb.edu/ws/index.php?pid= 12074
47. [hereinafter Eisenhower's 1961 State of the Union]. Carter's predecessors sounded similar antitrust themes.
48. See, e.g., Ford's 1976 State of the Union, supra ("[T]o foster competition and to bring prices down for the consumer[]. .. [t]his administration . . . will strictly enforce the Federal antitrust laws ....");
49. Kennedy's 1962 State of the Union, supra ("This administration has helped keep our economy competitive by widening the access of small business to credit and Government contracts, and by stepping up the drive against monopoly, price-fixing, and racketeering....");
50. Eisenhower's 1961 State of the Union, supra ("A major factor in strengthening our competitive enterprise system, and promoting economic growth, has been the vigorous enforcement of antitrust laws over the last eight years and a continuing effort to reduce artificial restraints on competition and trade and enhance our economic liberties.");
51. President Harry S. Truman, Annual Message to the Congress on the State of the Union (Jan. 6, 1947), available at http://www.presidency.ucsb.edu/ ws/index.php?pid=12762 ("[W]e now find that to a greater extent than ever before, whole industries are dominated by one or a few large organizations which can restrict production in the interest of higher profits and thus reduce employment and purchasing power. In an effort to assure full opportunity and free competition to business we will vigorously enforce the anti-trust laws.").
52. For example, President Clinton mentioned antitrust in speeches or remarks on forty-six occasions, but an illustrative instance is his 1996 remarks welcoming the World Series champion Atlanta Braves, where he remarked: "[The Braves] had great hitting, great fielding, and great pitching. Tom Glavine and Greg Maddux have won every Cy Young Award for the past 5 years. You may have an antitrust suit on your hands, even with baseball's exemption. [Laughter]." President William J. Clinton, Remarks Welcoming the World Series Champion Atlanta Braves (Feb. 26, 1996), available at http://www.presidency.ucsb.edu/ws/index.php?pid=52463&st=:atlanta+brave s&stl.
53. The findings discussed here are based on a search of the electronic archives of presidential speeches and addresses using the search terms "antitrust," "anti-trust," "trusts," and "monop." The archives searched were those maintained by the University of California at Santa Barbara. The American Presidency Project, http://www.presidency.ucsb.edu.
54. See, e.g., President William J. Clinton, Statement on Signing the Curt Flood Act of 1998 (Oct. 27, 1998), available at http://www. presidency.ucsb.edu/ws/index.php?pid=55156;
55. President William J. Clinton, Statement on Signing the Year 2000 Information and Readiness Disclosure Act (Oct. 19, 1998), available at http://www.presidency.ucsb.edu/ws/index.php?pid=55108;
56. President William J. Clinton, Statement on Signing the Telecommunications Act of 1996 (Feb. 8, 1996), available at http://www.presidency.ucsb.edu/ ws/index.php?pid=52289;
57. President William J. Clinton, Statement on Signing the ICC Termination Act of 1995 (Dec. 29, 1995), available at http://www.presidency.ucsb.edu/ ws/index.php?pid=52436;
58. President William J. Clinton, Statement on Signing the International Antitrust Enforcement Assistance Act of 1994 (Nov. 2, 1994), available at http://www.presidency.ucsb.edu/ws/index.php?pid=49419;
59. President William J. Clinton, Remarks on Signing the National Cooperative Production Amendments of 1993 (June 10, 1993), available at http://www.presidency.ucsb.edu/ws/index.php?pid=46674.
60. For a compilation of political-party platforms, see The American Presidency Project, Political-Party Platforms, http://www.presidency.ucsb.edu/ platforms.php.
61. See id.
62. See id.
63. Consistent with the recent Republican Party's general antipathy to antitrust enforcement, the platform promised to "change anti-trust laws to let health care providers cooperate in holding down charges." REPUBLICAN NAT'L COMM., REPUBLICAN PARTY PLATFORM OF 1996 (1996), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25848.
64. A similar promise appeared in the 1992 platform (to "modify outdated antitrust rules that prohibit hospitals from merging their resources to provide improved, cost-effective health care"). REPUBLICAN NAT'L COMM., REPUBLICAN PARTY PLATFORM OF 1992: THE VISION SHARED: THE REPUBLICAN PLATFORM, UNITING OUR FAMILY, OUR COUNTRY, OUR WORLD (1992), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25847.
65. See REPUBLICAN NAT'L COMM., REPUBLICAN PARTY PLATFORM OF 1976 (1976), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25843 ("The Republican Party believes in and endorses the concept that the American economy is traditionally dependent upon fair competition in the marketplace. To assure fair competition, antitrust laws must treat all segments of the economy equally.").
66. DEMOCRATIC NAT'L COMM., DEMOCRATIC PARTY PLATFORM OF 1984 (1984), available at http://www.presidency.ucsb.edu/ws/index.php?pid=29608.
67. The 1988 platform pledged to prevent "monopolistic mergers" and to "reinvigorat[e]" the antitrust laws. DEMOCRATIC NAT'L COMM., DEMOCRATIC PARTY PLATFORM OF 1988 (1988), available at http://www.presidency.ucsb.edu/ws/ index.php?pid=29609.
68. See DEMOCRATIC NAT'L COMM., DEMOCRATIC PARTY PLATFORM OF 2004 (2004), available at http://www.presidency.ucsb.edu/ws/?pid=29613;
69. DEMOCRATIC NAT'L COMM., DEMOCRATIC PARTY PLATFORM OF 2000 (2000), available at http://www.presidency.ucsb.edu/ws/? pid=29612;
70. DEMOCRATIC NAT'L COMM., DEMOCRATIC PARTY PLATFORM OF 1996: TODAY'S DEMOCRATIC PARTY: MEETING AMERICA'S CHALLENGES, PROTECTING AMERICA'S VALUES (1996), available at http://www.presidency.ucsb.edu/ws/?pid=29611;
71. DEMOCRATIC NAT'L COMM., DEMOCRATIC PARTY PLATFORM OF 1992: A NEW COVENANT WITH THE AMERICAN PEOPLE (1992), available at http://www.presidency.ucsb.edu/ws/?pid=29610.
72. See REPUBLICAN NAT'L COMM., REPUBLICAN PARTY PLATFORM OF 2004: A SAFER WORLD AND A MORE HOPEFUL AMERICA (2004), available at http://www.presidency.ucsb.edu/ws/?pid=25850;
73. REPUBLICAN NAT'L COMM., REPUBLICAN PARTY PLATFORM OF 2000 (2000), available at http://www.presidency.ucsb.edu/ws/?pid=25849.
74. United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000), aff'd in part, rev'd in part, 253 F.3d 34 (D.C. Cir. 2001).
75. See Edward Cavanagh, Antitrust Remedies Revisited, 84 OR. L. REV. 147, 192 (2005) ("Media coverage of the [Microsoft] trial was unprecedented in scope, and as the Microsoft story migrated from the business pages to the front pages of daily newspapers and to lead story on the evening news, even antitrust junkies began to feel like overdose victims.").
76. See Fred S. McChesney, Economics Versus Politics in Antitrust, 23 HARV. J.L. & PUB. POL'Y 133, 134 (1999) (describing the various political efforts made to influence the Microsoft litigation).
77. Id.
78. See infra notes 66-71 and accompanying text.
79. To describe antitrust as an increasingly nonpolitical enterprise is not to deny that even technocratic forms of antitrust administration are "political" in some sense of the word. See Richard O. Lempert, Civil Juries and Complex Cases: Let's Not Rush to Judgment, 80 MICH. L. REV. 68, 84 (1981) ("[C]omplex cases-such as large-scale antitrust litigation-are some of the most 'political' cases that the system hears. Vast sums of money are involved, and the structure of the nation'slargest companies may be at issue."). But antitrust is increasingly "nonpolitical" in the sense that it has ceased being a subject of partisan political discourse or control by the democratically elected branches.
80. Standard Oil Co. of N.J. v. United States, 221 U.S. 1 (1911).
81. United States v. AT&T, 552 F. Supp. 131 (D.D.C. 1982), aff'd sub nom.
82. Maryland v. United States, 460 U.S. 1001 (1983).
83. See generally Standard Oil, 221 U.S. 1 (involving the oil industry);
84. United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000) (involving the personal-computer industry), aff'd in part, rev'd in part, 253 F.3d 34 (D.C. Cir. 2001);
85. AT&T, 552 F. Supp. 131 (involving the telecommunications industry).
86. See supra note 29 and accompanying text.
87. Posner, supra note 3, at 926-33.
88. See supra note 3 and accompanying text. The Microsoft case discussed here is the Justice Department action brought in 1998.
89. See United States v. Microsoft Corp., 253 F.3d 34, 47 (D.C. Cir. 2001). The origins of the case date back to an earlier FTC investigation of Microsoft during the first Bush Administration and a 1995 consent decree during Bill Clinton's first term. William E. Kovacic, The Modern Evolution of U.S. Competition Policy Enforcement Norms, 71 ANTITRUST L.J. 377, 453 n.275 (2003).
90. President Theodore Roosevelt, Special Message to the Senate and House of Representatives (May 4, 1906), available at http://www.presidency.ucsb. edu/ws/index.php?pid=69667
91. [hereinafter Roosevelt's 1906 Special Message]. Roosevelt made additional public speeches singling out Standard Oil as "the most dangerous members of the criminal class-the criminals of great wealth." EDMUND MORRIS, THEODORE REX 507 (2001). Although Roosevelt strongly approved of the Government's action against Standard Oil, after he left office he wrote privately that he disfavored the dissolution remedy sought by the Government and eventually affirmed by the Supreme Court.
92. See Letter from Theodore Roosevelt to Arthur B. Farquhar (Aug. 11, 1911), in THEODORE ROOSEVELT: LETTERS AND SPEECHES 652, 652 (Louis Auchincloss ed., 1951) ("I do not myself see what good can come from dissolving the Standard Oil Company into forty separate companies, all of which will still remain really under the same control. What we should have is a much stricter governmental supervision of these great companies . . . .").
93. Roosevelt's 1906 Special Message, supra note 59.
94. See, e.g., President Theodore Roosevelt, Special Message to the Senate and House of Representatives (Jan. 31, 1908), available at http://www.presidency.ucsb.edu/ws/?pid=69649 ("The Standard Oil Corporation and the railway company have both been found guilty by the courts of criminal misconduct; . . . each has issued and published . . . statements, asserting their innocence and denouncing as improper the action of the courts and juries in convicting them of guilt. These statements are very elaborate, are very ingenious, and are untruthful in important particulars.");
95. President Theodore Roosevelt, Sixth Annual Message (Dec. 3, 1906), available at http://www.presidency.ucsb.edu/ws/?pid=29547 ("Rebates, for instance, are ... often due to the pressure of big shippers[, ]as was shown in the investigation of the Standard Oil Company . . ..").
96. DEMOCRATIC NAT'L COMM., DEMOCRATIC PARTY PLATFORM OF 1912 (1912), available a/http://www.presidency.ucsb.edu/ws/index.php?pid=29590.
97. See Press Conference with President Franklin D. Roosevelt (Apr. 27, 1937), excerpt available at http://www.presidency.ucsb.edu/ws/index. php?pid= 15397.
98. See Marcellus S. Snow, The AT&T Divestiture: A 10-Year Retrospective, in BEYOND COMPETITION: THE FUTURE OF TELECOMMUNICATIONS 207 (Donald M. Lamberton ed., 1995) (discussing the historic breakup and evaluating the costs and benefits ten years later).
99. Press Conference with President Gerald Ford (Dec. 2, 1974), available at http://www.presidency.ucsb.edu/ws/?pid=4600.
100. United States v. Microsoft Corp., 253 F.3d 34, 47 (D.C. Cir. 2001).
101. Interview by Ron Insana with President William J. Clinton, in New York City, N.Y. (Jan. 13, 2000), available at http://www.presidency.ucsb.edu/ ws/?pid=58387.
102. Interview by Wolf Blitzer with President William J. Clinton (Feb. 14, 2000), available at http://www.presidency.ucsb.edu/ws/index.php?pid= 58086.
103. See John M. Broder, Microsoft Tries Another Court: Public Opinion, N.Y. TIMES, June 12, 2000, at Al ("A Gallup poll taken in early May showed that 65% of the public had a favorable view of the company. The figure among computer users was even higher, 72%.").
104. Id. (quoting Vice President Gore).
105. Id.
106. See, e.g., David A. Balto, Antitrust Enforcement in the Clinton Administration, 9 CORNELL J.L. & PUB. POL'Y 61, 62-63 (1999) (discussing the Reagan Administration's view of antitrust enforcement as overly intrusive and the Administration's substantial reduction of antitrust enforcement);
107. Albert A. Foer, Half-Time at the Antitrust Modernization Commission, 40 U.S.F. L. REV. 601, 617 (2006) (describing antitrust enforcement during the Reagan Administration as being in "severe retrenchment");
108. Daniel Goldberg, Cornering the Market in a Post-9/11 World: The Future of Horizontal Restraints, 36 J. MARSHALL L. REV 557, 577 (2003) (asserting that antitrust enforcement approached dormancy during the 1980s);
109. Gregory J. Maier & Robert C. Mattson, State Street Bank in the Context of the Software Patent Saga, 8 GEO. MASON L. REV. 307, 321 (1999) ("The Reagan Administration ended the era of antitrust ascendancy.. . .");
110. Maurice E. Stucke, Behavioral Economists at the Gate: Antitrust in the Twenty-first Century, 38 LOY. U. CHI. L.J. 513, 540 (2007) (describing how the Chicago School's influence on the Reagan Administration resulted in the "waning" of civil nonmerger antitrust enforcement);
111. Yane Svetiev, Antitrust Governance: The New Wave of Antitrust, 38 LOY. U. CHI. L.J. 593, 605-06, 605 n.33 (2007) (describing the Reagan Administration as a period of nonenforcement of antitrust law). Further sources calling the Reagan Administration a period of virtual nonenforcement are collected in Kovacic, supra note 58, at 381-86.
112. There have been various empirical studies of the Antitrust Division's case filings over the years. See, e.g., Joseph C. Gallo et al., Department of Justice Antitrust Enforcement 1955-1997: An Empirical Study, 17 REV. INDUS. ORG. 75, 90-91 (2000);
113. Richard A. Posner, A Statistical Study of Antitrust Enforcement, 13 J.L. & ECON. 365 (1970), reprinted in THE CAUSES AND CONSEQUENCES OF ANTITRUST: THE PUBLIC-CHOICE PERSPECTIVE 73 (Fred S. McChesney & William F. Shughart II eds., 1995). Bill Kovacic's comprehensive survey of government antitrust enforcement from the 1960s through the early 2000s presents a more qualitative approach. See Kovacic, supra note 58, at 383-91.
114. See BUREAU OF ECON. ANALYSIS, CURRENT-DOLLAR AND "REAL" GROSS DOMESTIC PRODUCT (2008), http://www.bea.gov/national/xls/ gdplev.xls (estimating, in chained dollars, the 1940 real gross domestic product at $1,034 billion and the 2000 real gross domestic product at $9,817 billion).
115. The underlying data are pooled from two sources. For 1938-2006, the data were provided to the author by the Department of Justice Antitrust Division. For earlier years, the data were drawn from Posner, supra note 73, at 82 tbl.5.5. Posner's data were compiled from the Commerce Clearing House (CCH).
116. Id. at 73.
117. For the years in which there was overlap between Posner's CCH data and the data provided by the Department of Justice, there were slight but relatively insignificant differences. The real GDP numbers are chained 2000 dollars. Numbers from 1929 forward are collected from BUREAU OF ECON. ANALYSIS, supra note 74. Pre-1929 numbers are collected from Louis D. Johnston & Samuel H. Williamson, What Was the U.S. GDP Then? (2007), http://eh.net/hmit/gdp. An asterisk appears next to the 2005-2006 period because that period is weighted to reflect a two-year, rather than a five-year, period.
118. See Crane, supra note 23, at 101, 101-03, 108 (discussing the dramatic shift in the role and activity of the Antitrust Division that was caused by "Robert Jackson and Thurman Arnold, two New Deal giants who would place enduring stamps on the Antitrust Division").
119. What is interesting about the data from the Reagan years is that the total number of filed cases remained in line with the filings from the previous four or five administrations but the ratio of criminal to civil cases swung dramatically in favor of criminal cases, which is in line with the fact that the Reagan Administration prosecuted cartel cases far more vigorously than mergers and other civil matters.
120. See Kovacic, supra note 58, at 417, 416-20 (explaining that while the achievements of the Department of Justice (DOJ) in criminal enforcement in the 1990s were certainly "noteworthy," credit must be given to the DOJ's efforts in 1970s and 1980s because of a "vital phenomenon in competition policy-that progress toward a given level of enforcement occurs (and, sometimes, can best be pursued) incrementally rather than in a single leap"). Some commentators have disparaged the Reagan Administration's criminal enforcement of antitrust violations.
121. See id. at 416 ("[T]he pendulum narrative views the Reagan criminal antitrust program as commercially unimportant [and] a pedestrian exercise in bringing the same comparatively trivial case repeatedly."). Yet, Kovacic shows that the Reagan Administration's criminal enforcement against bid rigging in the public contracting and major-infrastructure sectors was important and effective. Id. at 417.
122. The gap between antitrust enforcement and economic growth does not necessarily signal a failure of antitrust because it is possible that the growth areas of the New Economy require less policing than traditional smokestack industries. Arguably, however, New Economy industries-which are characterized by low marginal costs, tremendous scale economies, and network effects-require more, not less, policing. See Daniel L. Rubinfeld & John Hoven, Innovation and Antitrust Enforcement, in DYNAMIC COMPETITION AND PUBLIC POLICY: TECHNOLOGY, INNOVATION, AND ANTITRUST ISSUES 65, 79 (Jerry Ellig ed., 2001) (describing anticompetitive tendencies in innovation-intensive markets).
123. See BUREAU OF ECON. ANALYSIS, supra note 74; Posner, supra note 73, at 82 tbl.5.5.
124. See Kovacic, supra note 58, at 407, 407-08 (explaining some limitations with a "raw count[] of cases" approach to measuring federal antitrust enforcement).
125. Although comparing both the Antitrust Division's and the FTC's budgets and antitrust-enforcement activities to GDP would provide a fuller analysis, the FTC did not begin separately reporting its antitrust budget until the 1950s, and its data on antitrust-case filings go back only to 1978. Accordingly, I have used Justice Department statistics as the most reliable historical proxy for the level of federal antitrust enforcement. See ANTITRUST DIV., U.S. DEP'T OF JUSTICE, APPROPRIATION FIGURES FOR THE ANTITRUST DIVISION FISCAL YEARS 1903-2008 (2007), http://www.usdoj.gov/atr/public/10804a.htm.
126. See Robert W. Hahn & Anne Layne-Farrar, Federalism in Antitrust, 26 HARV. J.L. & PUB. POL'Y 877, 891 (2003) ("At the federal level, the Hart-Scott-Rodino Act pre-merger notification rules provide antitrust authorities with substantial information on the merging companies, which tends to weed out mergers unlikely to cause anticompetitive harm, resulting in fewer merger cases scrutinized by federal authorities reaching litigation.").
127. This includes filing amicus curiae briefs in civil matters and other agencies' cases, negotiating with and giving advice to foreign governments and international organizations, and engaging in industry outreach. See generally Kovacic, supra note 58, at 409 (explaining the value of agency "advocacy and research").
128. See infra text accompanying notes 87-88 and Figure 4.
129. See Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4 (2000) (amending the procedures for private securities litigation in the Securities and Exchange Act of 1934 to reduce abusive litigation);
130. Securities Litigation Uniform Standards Act (SLUSA) of 1998, Pub. L. No. 105-353, 11 Stat. 3227 (codified as amended in scattered sections of 15 U.S.C.) (amending the Securities Act of 1933 and the Securities Exchange Act of 1934 to limit securities class actions under state law).
131. See, e.g., Brian R. Cheffins & Bernard S. Black, Outside Director Liability Across Countries, 84 TEXAS L. REV. 1385 (2006) (noting the financial risks faced by outside directors of public companies after the Enron and WorldCom scandals and analyzing those risks of out-of-pocket payments on a cross-border basis);
132. Robert Zachary Beasley, Note, A Legislative Solution: Solving the Contemporary Challenge of Forced Waiver of Privilege, 86 TEXAS L. REV. 385 (2007) (explaining the attorney-client relationship and prevalence of privilege waivers in the aftermath of the Enron and WorldCom scandals);
133. Eric Lichtblau, Bush Officials Vowing to Seek Tough Penalties in Wall St. Cases, N.Y. TIMES, Dec. 19, 2002, at Cl (reporting that the Justice Department planned to seek tough penalties for white-collar criminals, including those involved in the Enron and WorldCom scandals).
134. The private-enforcement data through 1959 are drawn from Posner, supra note 73, at 79 tbl.5.3. After 1959, they are drawn from the reports of the Administrative Offices of the U.S. Courts.
135. See, e.g., JAMES C. DUFF, ADMIN. OFFICE OF THE U.S. COURTS, 2006 JUDICIAL BUSINESS OF THE UNITED STATES COURTS: ANNUAL REPORT OF THE DIRECTOR (2006), available at http:// www.uscourts.gov/judbus2006/completejudicialbusiness.pdf. The annual reports for the years 1997-2006 are available online at http://www.uscourts.gov/judbususc/ judbus.html.
136. Adjustment for real GDP follows the methodology described supra note 75. The 2005-2006 cell is based on a two-year rather than five-year sample,
137. See Celler-Kefauver Act of December 29, 1950, 15 U.S.C. §§ 18, 21 (2000). See generally Rudolph J.R. Peritz, Toward a Dynamic Antitrust Analysis of Strategic Market Behavior, 47 N.Y.L. SCH. L. REV. 101, 110 (2003) (describing the Celler-Kefauver Act as reflecting an "impulse toward Jeffersonian entrepreneurialism") .
138. See Daniel A. Crane, Antitrust Modesty, 105 MICH. L. REV. 1193, 1210 (2007) (describing an implicit bargain in which antitrust enforcers trade political salience for independence).
139. See Crane, supra note 25, at 17-21 (describing differing models of antitrust enforcement considered during the Progressive Era).
140. See AKIN, supra note 4, at 3 (describing the rise of technocratic sentiment during the early part of the twentieth century).
141. Between 1998 and 2007, the Department of Justice's Antitrust Division initiated an average of only 17.3 civil cases and 45.4 criminal cases per year. See ANTITRUST DIV., U.S. DEP'T OF JUSTICE, ANTITRUST DIVISION WORKLOAD STATISTICS FY 1998-2007, available at http://0225.01 45.01.040/atr/public/workstats.pdf The Federal Trade Commission initiates a similarly small number of nonmerger civil enforcement actions.
142. See BUREAU OF COMPETITION, FED. TRADE COMM'N, ANTITRUST ENFORCEMENT ACTIVITIES: FISCAL YEAR 2002-MARCH 15, 2006 (2006), available at http://www.ftc.gov/reports/aba/abaspring2006.pdf (showing a maximum of sixteen FTC nonmerger civil enforcement actions in any of the years from 2002 to 2005). Private litigants file over 800 federal antitrust cases a year, almost all of them seeking damages for past violations.
143. See, e.g., DUFF, supra note 87, at 162 tbl.D-2 (showing that private litigants filed 967 antitrust cases in 2006).
144. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 261 (Harvey C. Mansfield & Delba Winthrop eds., Univ. of Chi. Press 2000) (1835).
145. See Powers v. Ohio, 499 U.S. 400, 407 (1991) ("[W]ith the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.").
146. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1190 (1991).
147. Cass R. Sunstein et al., Assessing Punitive Damages (with Notes on Cognition and Valuation in the Law), 107 YALE L.J. 2071, 2120-21 (1998).
148. Id.
149. 15 U.S.C. § 15(a) (2000).
150. Indeed, leading antitrust scholars argue that antitrust law has no moral character at all. See HERBERT HOVENKAMP, THE ANTITRUST ENTERPRISE: PRINCIPLE AND EXECUTION 10 (2005) ("Antitrust is an economic, not a moral, enterprise.");
151. id. at 47 ("Antitrust is not good at transferring wealth, and cannot be defended on that basis in any event. Nor does it have any moral content of its own, and is not well designed to provide rules of business ethics.");
152. see also United States v. United Shoe Mach. Corp., 110 F. Supp. 295, 345 (D. Mass. 1953) ("The violation with which United is now charged depends not on moral considerations, but on solely economic considerations. "), aff'd per curiam, 347 U.S. 521 (1954).
153. See Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962) (holding that the boundaries of a product market are determined by "interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it");
154. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 394, 393-404 (1956) (holding that the relevant market is determined by whether there is "'cross-elasticity' of demand" between cellophane and other wrappings).
155. See NCAA v. Board of Regents, 468 U.S. 85, 109 n.38 (1984) ("Market power is the ability to raise prices above those that would be charged in a competitive market.").
156. See NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 137, 139-40 (1998) (holding that the plaintiff cannot succeed in an antitrust case without showing harm to the competitive process and noting that even conduct that may be fraudulent, tortious, or otherwise unlawful does not implicate antitrust unless it causes harm to the competitive process).
157. See United States v. Microsoft Corp., 253 F.3d 34, 59 (D.C. Cir. 2001) (holding that once the plaintiff succeeds in showing that the defendant's conduct was anticompetitive, the burden shifts to the defendant to offer efficiency justifications).
158. See id. (holding that once the defendant shows that there are procompetitive justifications for its conduct, the burden shifts back to the plaintiff to show that the anticompetitive effects outweigh the procompetitive effects);
159. United States v. Brown Univ., 5 F.3d 658, 679 (3d Cir. 1993) ("Once a defendant demonstrates that its conduct promotes a legitimate goal, the plaintiff, in order to prevail, bears the burden of proving that there exists a viable less restrictive alternative.").
160. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (holding that the plaintiff in a private antitrust case for damages must show not only anticompetitive conduct but also that the harm suffered by the plaintiff was of the kind that the antitrust laws were intended to prevent).
161. See, e.g., Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 225 (1993) ("Even an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws.").
162. There is no question as to the Sixth Amendment right to a jury in criminal antitrust cases and only slight doubt as to the Seventh Amendment right to a jury in civil antitrust cases. See Crane, supra note 25, at 33.
163. See infra note 125. Although statistically few criminal antitrust cases go to juries, as noted below, the percentage of jury adjudications in criminal cases is much higher than in civil cases. See infra note 125.
164. See Crane, supra note 25, at 35 n.188 (presenting rate-of-dismissal statistics).
165. About another 1% are tried as bench trials, usually by consent of the parties. Id.
166. See In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1075-76 (3d Cir. 1980).
167. Crane, supra note 25, at 35-37.
168. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (discussing the need to guard against false positives in conspiracy cases);
169. Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 414 (2004) ("The cost of false positives counsels against an undue expansion of § 2 [monopolization] liability.");
170. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 226 (1993) ("'[Mistaken inferences [of predatory pricing and the resulting false condemnations] are especially costly, because they chill the very conduct the antitrust laws are designed to protect.'" (quoting Cargill, Inc. v. Montfort of Colo., Inc., 479 U.S. 104, 122 n.17 (1986))). Open criticism of the jury as an institution is often considered bad manners.
171. See, e.g., Edwin J. Hughes, The Left Side of Antitrust: What Fairness Means and Why It Matters, 11 MARQ. L. REV. 265, 286 (1994) ("The distrust of this system evident in the economic approach to antitrust and the movement toward a system more akin to administrative law for resolving these claims is [sic] antidemocratic, reflecting a distrust of both the citizens sitting on juries and of the informal, consensus-building model of decision-making that the jury system embodies.").
172. 127 S. Ct. 1955(2007).
173. See id. at 1964-66.
174. Id. at 1975 (Stevens, J., dissenting).
175. Id. at 1967 (majority opinion) (quoting id. at 1975 (Stevens, J., dissenting)).
176. The possibility of jury error was discussed tangentially in the parties' briefs. See, e.g., Brief in Opposition at 18, Twombly, 127 S. Ct. 1955 (No. 05-1126).
177. In another antitrust case contemporary with Twombly, the Court justified its holding that securities law preempted antitrust lawsuits against syndicates underwriting initial public offerings by noting the risk of "the threat of antitrust mistakes" and "error" in the adjudication of antitrust lawsuits. Credit Suisse Sec. (USA) LLC v. Billing, 127 S. Ct. 2383, 2396 (2007). See generally Crane, supra note 25, at 35-36 (discussing earlier precedents evidencing concern over false positives in antitrust jury trials).
178. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
179. See Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis, " and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. REV. 982, 1032 (2003) ("Thus, there are compelling arguments that the Supreme Court's holding in Matsushita, declaring the plaintiffs' requested inference implausible, was mandated by substantive antitrust law and the traditional conception of summary judgment, not by any heightened standard to be generally imposed on parties defending against the motion."); id. at 1055 (describing courts' willingness to take the Supreme Court's willingness to grant summary judgment in a complex antitrust action as a signal to be receptive to the motion in other contexts as well).
180. Although there is relatively little empirical work on the performance of juries in modern antitrust cases, the little that there is seems to confirm the suspicion that juries are woefully unable to keep up with the complexities of antitrust trials. See Arthur Austin, The Jury System at Risk from Complexity, the New Media, and Deviancy, 73 DENV. U. L. REV. 51, 54, 52-59 (1995) (reporting based on a study of five juries in private antitrust cases: "[T]he jurors were overwhelmed, frustrated, and confused by testimony well beyond their comprehension. I concluded that at no time did any juror grasp-even at the margins-the law, the economics or any other testimony relating to the allegations or defense").
181. See Gary R. Spratling, Deputy Assistant Att'y Gen., Antitrust Div., U.S. Dep't of Justice, Address Before the Bar Association of the District of Columbia's 35th Annual Symposium on Associations and Antitrust: Making Companies an Offer They Shouldn't Refuse: The Antitrust Division's Corporate Leniency Policy-An Update 5 (Feb. 16, 1999), available at http://www.usdoj .gov/atr/public/speeches/2247.pdf (noting greater success in criminal enforcement against international cartels since the adoption of the amnesty policy).
182. Crane, supra note 25, at 35 n.188.
183. The statistics reported here are based on the annual reports of the Director of the Administrative Offices of the U.S. Courts for the years 1997-2006. The data are collected from Table D-4 (Criminal Defendants Disposed of, by Type of Disposition and Major Offense) of the Detailed Statistical Tables for U.S. District Courts. The data show that during these years, of 326 defendant dispositions, only 7 were by dismissal. See, e.g., DUFF, supra note 87, at 249 tbl.D-4;
184. LEONIDAS RALPH MECHAM, ADMIN. OFFICE OF THE U.S. COURTS, 2004 JUDICIAL BUSINESS OF THE UNITED STATES COURTS: ANNUAL REPORT OF THE DIRECTOR 217 tbl.D-4 (2004), available at http://www.uscourts.gov/judbus2004/appendices/d4.pdf;
185. LEONIDAS RALPH MECHAM, ADMIN. OFFICE OF THE U.S. COURTS, 2002 JUDICIAL BUSINESS OF THE UNITED STATES COURTS: ANNUAL REPORT OF THE DIRECTOR 211 tbl.D-4 (2002), available at http://www.uscourts.gov/judbus2002/ appendices/d04sep02.pdf;
186. LEONIDAS RALPH MECHAM, ADMIN. OFFICE OF THE U.S. COURTS, 2000 JUDICIAL BUSINESS OF THE UNITED STATES COURT: ANNUAL REPORT OF THE DIRECTOR 221 tbl.D-4 (2000), available at http://www.uscourts.gov/judbus2000/appendices/d04sep00.pdf.
187. Crane, supra note 25, at 35 n.188.
188. See supra note 125.
189. See supra note 125.
190. See Cavanagh, supra note 48, at 209 (observing the increased use after Matsushita of summary judgment to dispose of antitrust cases);
191. Christopher S. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 1013-21 (2003) (observing the persistent use of heightened pleading standards by judges to remove antitrust cases from their caseloads).
192. See Cavanagh, supra note 48, at 149-51 (focusing on sentencing guidelines and leniency agreements in his discussion of the Antitrust Division's criminal powers).
193. A good example of this is the Justice Department's criminal prosecution of executives involved in the price-fixing conspiracy between Christie's and Sotheby's. See generally CHRISTOPHER MASON, THE ART OF THE STEAL: INSIDE THE SOTHEBY'S-CHRISTIE'S AUCTION HOUSE SCANDAL (2004). After incriminating facts emerged, it became apparent that a price-fixing conspiracy had been effectuated between the two firms, a matter that sealed the fate of the corporate defendants in the class-action lawsuits brought by aggrieved buyers and sellers against the auction houses.
194. See id. at 290 ("Both Sotheby's and Christie's knew that the evidence against them [in the class action] . . . was so overwhelming that a jury would have no trouble finding both companies liable."). Nonetheless, there remained ample questions for the jury's determination in the ensuing criminal cases, which focused largely on who at the various firms was responsible for the illegal agreement, and to what degree.
195. See, e.g., id. at 319-46 (describing the trial of Sotheby's Chairman Alfred Taubman).
196. Criminal enforcement of antitrust is sometimes handled by generalist prosecutors outside the Antitrust Division. See ANTITRUST DIV., U.S. DEP'T OF JUSTICE, ANTITRUST DIVISION MANUAL ch. VII.B (3d ed. 1998), available at http://www.usdoj.gov/atr/foia/divisionmanual/ch7.htm#b ("Most criminal antitrust investigations are conducted by the Antitrust Division's field offices and litigating sections .... In some cases, however, it may be more advantageous for the U.S. Attorney's office to investigate and prosecute a matter .. . .").
197. See, e.g., W. KIP VISCUSI, JOSEPH E. HARRINGTON, JR. & JOHN M. VERNON, ECONOMICS OF REGULATION AND ANTITRUST xviii (4th ed. 2005) ("The traditional emphasis of economics textbooks on business and government is on the character of regulations and antitrust policies.").
198. See Ken I. Kersch, Justice Breyer's Mandarin Liberty, 73 U. CHI. L. REV. 759, 760-61 (2006) (reviewing STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005)) (describing Justice Breyer's technocratic outlook).
199. Town of Concord, Mass. v. Boston Edison Co., 915 F.2d 17, 22 (1st Cir. 1990).
200. Crane, supranote 25, at 2.
201. HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW 1836-1937, at 163-68 (1991).
202. Paul Stephen Dempsey, The Interstate Commerce Commission- Disintegration of an American Legal Institution, 34 AM. U. L. REV. 1, 2 (1984).
203. See, e.g., Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 ADMIN. L. REV. 429, 445 (2006) (describing the technocratic origins of the ICC);
204. Keith E. Whittington, Dismantling the Modern State? The Changing Structural Foundations of Federalism, 25 HASTINGS CONST. L.Q. 483, 494 (1998) (using the ICC as an example of "the administrative ethic, with its focus on technocratic expertise").
205. See Whittington, supra note 139, at 493 ("Railroad economists .. . were active in shaping the political decision to regulate railroad rates-which, in turn, required the establishment of the Interstate Commerce Commission (ICC), staffed with economists-rather than to prohibit identified practices or to break up some companies legislatively.").
206. See SKLAR, supra note 13, at 324 (describing the two possible models for controlling the trusts as a statist regulatory model along the lines of the ICC and a nonstatist model of indirect regulation along the lines of the Sherman and FTC Acts).
207. See, e.g., William H. Page, Interest Groups, Antitrust, and State Regulation: Parker v. Brown in the Economic Theory of Legislation, 1987 DUKE L.J. 618, 659 (describing the Sherman Act's open texture).
208. See, e.g., Nat'l Soc'y of Prof 1 Eng'rs v. United States, 435 U.S. 679, 688 (1978) ("Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition.");
209. PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW H 103d2, at 59 (2d ed. 2000) (stating that the legislative history of other antitrust statutes demonstrates that the Sherman Act "invest[ed] the federal courts with a jurisdiction to create and develop an 'antitrust law' in the manner of the common law courts");
210. William F. Baxter, Separation of Powers, Prosecutorial Discretion, and the "Common Law" Nature of Antitrust Law, 60 TEXAS L. REV. 661, 663 (1982) ("Congress adopted what is in essence enabling legislation that has permitted a common-law refinement of antitrust law through an evolution guided by only the most general statutory directions.");
211. Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 544 (1983) ("The statute books are full of laws, of which the Sherman Act is a good example, that effectively authorize courts to create new lines of common law.").
212. See, e.g., Oliver Wendell Holmes, Codes, and the Arrangement of the Law, 5 AM. L. REV. 1, 1 (1870), reprinted in 1 THE COLLECTED WORKS OF JUSTICE HOLMES 212, 212
213. (Sheldon M. Novick ed., 1995) ("It is the merit of the common law that it decides the case first and determines the principle afterwards."). For a recent exchange on the merits of common law rule making, see Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 912-13 (2006), which argues that cognitive biases distort adjudicatory rule making,
214. and Emily Sherwin, Judges as Rulemakers, 73 U. CHI. L. REV. 919, 923-24 (2006), which defends common law adjudication based on its focus on real-world disputes.
215. See Peter H. Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 CORNELL L. REV. 941, 974-76 (1995) (discussing the advantages of adjudication over regulation in the context of mass-tort litigation).
216. See id. at 973 (discussing the "radically decentralized" nature of adjudication's decision-making process).
217. See Caleb Nelson, Statutory Interpretation and Decision Theory, 74 U. CHI. L. REV. 329, 351 (2007) (book review) (discussing tunnel-vision and agency-capture concerns that may lend generalist judges some advantages over specialized agencies).
218. But see Richard A. Nagareda, Turning from Tort to Administration, 94 MICH. L. REV. 899, 902-03 (1996) (discussing models of public-agency involvement in private mass-tort litigation to help achieve appropriate compensation terms).
219. See supra subpart III(A) (discussing the untechnocratic implications of civil juries and criminal enforcement); infra notes 191-213 and text accompanying (discussing the FTC's role as a law-enforcement agency).
220. See AKIN, supra note 4, at 1-3 (describing the progressive technocratic movement as based on a problem-solving approach to social and economic problems).
221. See Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (in Some Cases), 83 GEO. L.J. 2663, 2674-75 (1995) (arguing that adjudication, by producing "binary win-lose results," fails to "recognize the ambiguities and contradictions in modern life"); see also WOLF HEYDEBRAND & CARROLL SERON, RATIONALIZING JUSTICE: THE POLITICAL ECONOMY OF FEDERAL DISTRICT COURTS 45-57, 81-89 (1990) (analyzing the shift from adjudication toward "technocratic administration" in the federal courts).
222. It is possible, of course, that the fact finder might find the defendant guilty or liable on some counts but not others, but as to each count there are only two possibilities: guilty or liable and not guilty or not liable.
223. See, e.g., Andrew T. Guzman, Is International Antitrust Possible?, 73 N.Y.U. L. REV. 1501, 1509 (1998) (noting that a merger can simultaneously create productive efficiencies and economies of scale);
224. Alan J. Meese, Monopolization, Exclusion, and the Theory of the Firm, 89 MINN. L. REV. 743, 781-82 (2005) (discussing economic perspectives on simultaneous increases in market power and economies of scale brought about by aggregations of capital);
225. Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Tradeoffs, 58 AM. ECON. REV. 18, 21-23 (1968) (discussing how even a merger to monopoly can increase social welfare if it results in increased economies of scale).
226. See, e.g., United States v. Visa U.S.A., Inc., 344 F.3d 229, 238 (2d Cir. 2003) (applying a three-step rule of reason, including: (1) initial proof by the plaintiff that the relevant agreement created market power, (2) proof by the defendant that the restraint created efficiencies sufficient to negate any anticompetitive effects, and (3) opportunity for the plaintiff to show that the restraint was not reasonably necessary to achieve alleged efficiencies);
227. Andrew I. Gavil, Exclusionary Distribution Strategies by Dominant Firms: Striking a Better Balance, 72 ANTITRUST L.J. 2, 54 n.193 (2004) ("[M]uch of modern antitrust law today is driven by common, core concepts, such as market power, entry, and efficiency, which are relevant to the application of Sections 1 and 2 of the Sherman Act, and Section 7 of the Clayton Act.");
228. Spencer Weber Waller, Microsoft and Trinko: A Tale of Two Courts, 2006 UTAH L. REV. 741, 750 ("One can equally persuasively argue from economic theory that antitrust principally fears durable market power unaccompanied by substantial efficiencies .. . .").
229. See, e.g., Visa, 344 F.3d at 238 ("As an initial matter, the government must demonstrate that the defendant conspirators have 'market power' in a particular market for goods or services.").
230. See, e.g., id. (describing the defendant's burden to produce "a procompetitive justification for the challenged restraint" once the Government has shown sufficient market power).
231. See Thomas A. Piraino, Jr., A Proposed Antitrust Approach to Collaborations Among Competitors, 86 IOWA L. REV. 1137, 1187-88 (2001) (discussing situations where joint ventures create both efficiencies and market power).
232. See, e.g., Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 281-83 (2d Cir. 1979) (holding that a court may not balance improvements in a dominant firm's products against anticompetitive effects on the dominant firm's rivals).
233. See generally Alan A. Fisher, Efficiency Considerations in Merger Enforcement, 71 CAL. L. REV. 1580, 1599-600 (1983) (discussing research and development synergies in merger enforcement).
234. See, e.g., Christopher R. Leslie, Trust, Distrust, and Antitrust, 82 TEXAS L. REV. 515, 671 (2004) ("Federal judges should balance any expected productive efficiencies against the possibility of allocative inefficiencies caused by cartel-like agreements spawned by the joint venture relationships.").
235. See Daniel A. Crane, Rules Versus Standards in Antitrust Adjudication, 64 WASH. & LEE L. REV. 49, 99, 99-100 (2007) ("[T]he substantial costs of an adverse judgment will deter most dominant firms from straying too close to the line drawn by [any] rule.").
236. See HOVENKAMP, supra note 99, at 108 (outlining problems with an antitrust approach that turns on balancing the social costs of monopoly against increases in efficiency from the challenged practice).
237. See Sullivan v. NFL, 34 F.3d 1091, 1103 (1st Cir. 1994) ("One basic tenet of the rule of reason is that a given restriction is not reasonable, that is, its benefits cannot outweigh its harm to competition, if a reasonable, less restrictive alternative to the policy exists that would provide the same benefits as the current restraint.");
238. Mozart Co. v. Mercedes-Benz of North America, Inc., 833 F.2d 1342, 1349 (9th Cir. 1987) ("A tie-in does not violate the antitrust laws 'if implemented for a legitimate purpose and if no less restrictive alternative is available.'" (quoting Phonetele, Inc. v. AT&T, 664 F.2d 716, 739 (9th Cir. 1981))).
239. See, e.g., NFL v. N. Am. Soccer League, 459 U.S. 1074, 1079-80 (1982) (Rehnquist, J., dissenting) (criticizing the Second Circuit for adopting a least-restrictive-alternative test in antitrust cases and arguing that such an approach is inconsistent with Supreme Court precedent);
240. FED. TRADE COMM'N & U.S. DEP'T OF JUSTICE, ANTITRUST GUIDELINES FOR COLLABORATIONS AMONG COMPETITORS § 3.36(b) (2000), available at http://www.ftc.gov/os/2000/04/ftcdojguidelines.pdf (explaining that the agencies do not demand showing that restraint was essential to achieving the efficiencies but merely that the efficiency could not have been achieved by "practical, significantly less restrictive means").
241. See Hovenkamp, Antitrust Policy, supra note 3, at 264-82 (discussing the Chicago School's insights on the efficiency of various competitive practices).
242. See, e.g., Joseph F. Brodley, Antitrust Standing in Private Merger Cases: Reconciling Private Incentives and Public Enforcement Goals, 94 MICH. L. REV. 1, 23 n.88 (1995) (noting that predatory-pricing plaintiffs "must overcome deliberately underinclusive liability rules");
243. William E. Kovacic, The Intellectual DNA of Modern U.S. Competition Law for Dominant Firm Conduct: The Chicago/Harvard Double Helix, 2007 COLUM. BUS. L. REV. 1, 72 (noting that both the Chicago and Harvard Schools of antitrust have contributed to underinclusive liability norms for dominant-firm behavior);
244. Frank X. Schoen, Exclusionary Conduct After Trinko, 80 N.Y.U. L. REV. 1625, 1647 (2005) (noting that the Supreme Court has created deliberately underinclusive liability norms for refusals to deal by dominant firms).
245. See generally A. Douglas Melamed, Antitrust: The New Regulation, ANTITRUST, Fall 1995, at 13, 13 (discussing the differences between the "Law Enforcement Model," an approach to antitrust that focuses on whether past conduct violates legal norms, and the "Regulatory Model," which "tends to focus more on prospective regulation of the private sector by the government" and "tends to ask .. . how private entities should behave or how private property could be used to maximize social welfare").
246. 15 U.S.C. § 18a(a) (2000).
247. Id. § 18a(b)(1).
248. Id. § 18a(e).
249. Id. § 18a(e)(2).
250. See E. Thomas Sullivan, The Antitrust Division as a Regulatory Agency: An Enforcement Policy in Transition, 64 WASH. U. L.Q. 997, 1031 (1986) ("The [Hart-Scott-Rodino] Act does not change the substantive antitrust law governing the legality of mergers . . . ."). Nor does the agency's negotiation of a divestiture package preclude private parties from arguing that the agencies did not go far enough to ensure a competitive market.
251. See Six W. Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., No. 97 CIV. 5499(DNE), 2000 WL 264295, at *23 (S.D.N.Y. Mar. 9, 2000) (noting that the negotiation of a divestiture package "has no prima facie effect in any subsequent private lawsuit").
252. See Sullivan, supra note 172, at 1025-42 (illustrating how the Hart-Scott-Rodino Act's premerger-notification requirement allows the Antitrust Division to review a particular merger's effects and, where those effects implicate anticompetitive concerns, to negotiate with the merging parties to alleviate those concerns).
253. Crane, supra note 25, at 52.
254. See Sullivan, supra note 172, at 1034-35 (describing the "fix it first" policy of the Antitrust Division, which favors informal negotiation prior to the consummation of the merger).
255. See, e.g., U.S. DEP'T OF JUSTICE & FED. TRADE COMM'N, HORIZONTAL MERGER GUIDELINES 1 (rev. ed. 1997), available at http://www.usdoj.gov/atr/public/guidelines/hmg.pdf
256. [hereinafter HORIZONTAL MERGER GUIDELINES] ("[These Guidelines] describe the analytical framework and specific standards normally used by the Agency in analyzing mergers. . . . [However,] it is not possible to remove the exercise of judgment from the evaluation of mergers under the antitrust laws.").
257. See W. Jonathan Cardi, Über-middlemen: Reshaping the Broken Landscape of Music Copyright, 92 IOWA L. REV. 835, 846-47 (2007) (describing the consent decree negotiated by ASCAP and BMI in response to the Justice Department's investigation into the two organizations' licensing and rate-setting practices);
258. Timothy Wu, Copyright's Communications Policy, 103 MICH. L. REV. 278, 304-11 (2004) (detailing how the antitrust litigation of ASCAP and BMI achieved results similar to those of copyright settlements). The essential mechanisms of the modified decree, as applied to BMI, are discussed in United States v. Broadcast Music, Inc., 426 F.3d 91, 95 (2d Cir. 2005). The rate-setting provision is codified in 17 U.S.C. § 513 (2000).
259. The economic justifications for the BMI and ASCAP system are discussed in Broadcast Music, Inc. v. CBS, 441 U.S. 1, 4-5 (1979).
260. Id.
261. See id. at 30 (Stevens, J., dissenting) ("Virtually every domestic copyrighted composition is in the repertoire of either ASCAP or BMI.").
262. See Wu, supra note 177, at 304-11 (describing the antitrust litigation and resulting consent decree, which was modified several times in its forty-year history).
263. E.g., Broad. Music, Inc., 426 F.3d at 92 n. 1.
264. See id. at 95 (explaining the role of the rate court in establishing the fair market value of music rights).
265. In a recent study highly critical of many antitrust consent decrees, Richard Epstein generally approves of the BMI and ASCAP decree as "conform[ing], by and large, to the golden rule: Keep consent decrees simple, and tie them to the core violations to which they are directed." RICHARD A. EPSTEIN, ANTITRUST CONSENT DECREES IN THEORY AND PRACTICE: WHY LESS IS MORE 39 (2007).
266. See Daniel A. Crane, Patent Pools, RAND Commitments, and the Problematics of Price Discrimination, in WORKING WITHIN THE BOUNDARIES OF INTELLECTUAL PROPERTY LAW (Rochelle Dreyfuss, Diane L. Zimmerman & Harry First eds., forthcoming 2008) (manuscript of chapter at 2-3, on file with author) (describing the voluntary acceptance of RAND commitments by members of standard-setting organizations).
267. Id. (manuscript at 5-6).
268. Id. (manuscript at 2).
269. Id. (manuscript at 11).
270. Id. (manuscript at 9-10).
271. Id. (manuscript at 20-21).
272. E.g., May, supra note 139, at 445; William T. Mayton, The Possibilities of Collective Choice: Arrow's Theorem, Article I, and the Delegation of Legislative Power to Administrative Agencies, 1986 DUKE L.J. 948, 948 n.4.
273. See May, supra note 139, at 445 (describing Humphrey's Executor v. United States, 295 U.S. 602 (1935) as following "[t]he dominant idea. . . that the expertise of the commissioners would primarily guide these essentially nonpolitical agencies").
274. 295 U.S. 602(1935).
275. Id. at 618.
276. Id. at 630-31.
277. See 15 U.S.C. § 41 (2000) ("Not more than three [out of five] of the Commissioners shall be members of the same political party.").
278. See ELEANOR M. FOX, LAWRENCE A. SULLIVAN & RUDOLPH J.R. PERITZ, CASES AND MATERIALS ON U.S. ANTITRUST IN GLOBAL CONTEXT 645 (2d ed. 2004) (describing the structure of the Federal Trade Commission).
279. SKLAR, supra note 13, at 344-45.
280. Id. at 367, 369.
281. Id. at 422.
282. 25 WOODROW WILSON, A Campaign Address in Sioux City, Iowa, in THE PAPERS OF WOODROW WILSON 148, 154 (Arthur S. Link ed., 1978).
283. The FTC has a separate consumer-protection mission where it does engage in legislative functions, such as promulgating the popular "Do Not Call" registry in conjunction with the Federal Communications Commission. Telemarketing Sales Rule, 68 Fed. Reg. 4580, 4582 (Jan. 29, 2003), codified at 16 C.F.R. pt. 310 (2007).
284. FOX, SULLIVAN & PERITZ, supra note 197, at 645.
285. See Memorandum of Agreement Between the Federal Trade Commission and the Antitrust Division of the United States Department of Justice Concerning Clearance Procedures for Investigations (March 5, 2002), available at http://www.ftc.gov/opa/2002/02/clearance/ftcdojagree.pdf.
286. Id. at 3-4.
287. Id. app.A.
288. See Lauren Kearney Peay, Note, The Cautionary Tale of the Failed 2002 FTC/DOJ Merger Clearance Accord, 60 VAND. L. REV. 1307, 1333-38 (2007) (describing the successful efforts of Senator Ernest F. Hollings in derailing the clearance agreement).
289. The FTC has the power to make substantive antitrust rules, subject to various procedural requirements. 15 U.S.C. § 57a (2000). The view that the FTC should engage in more rule making was strongly articulated by administrative law scholar Kenneth Culp Davis during the 1970s.
290. See KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 70-74 (1969).
291. E.g., Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1174 n.5 (11th Cir. 1985);
292. Holloway v. Bristol-Myers Corp., 485 F.2d 986, 987-89 (D.C. Cir. 1973).
293. See Hillary Greene, Guideline Institutionalization: The Role of Merger Guidelines in Antitrust Discourse, 48 WM. & MARY L. REV. 771, 841 (2006) (discussing the fact that the DOJ would not be bound by antitrust prohibitions codified by the FTC).
294. See supra note 92.
295. See Thomas F. McInerney III, Habermas, Proceduralism and the Private Cause of Action Under Rule 10b-5: The Implications for Democracy, 31 CREIGHTON L. REV. 805, 805 (1998) (discussing the scope of the Rule 10b-5 cause of action).
296. A 1989 report by the American Bar Association found that the FTC had promulgated only one antitrust-specific rule - a prohibition on discriminatory practices in the men's and boys' tailored-clothing industry. ABA Section of Antitrust Law, Report of the American Bar Association Section of Antitrust Law Special Committee to Study the Role of the Federal Trade Commission, 58 ANTITRUST L.J. 43, 91 n.103 (1989).
297. FTC v. Ind. Fed'n of Dentists, 476 U.S. 447, 454 (1986).
298. See, e.g., Cal. Dental Ass'n v. FTC, 526 U.S. 756, 769-81 (1999) (holding that the FTC's abbreviated rule-of-reason analysis was inadequate to establish anticompetitive advertising);
299. Schering-Plough Corp. v. FTC, 402 F.3d 1056, 1076 (11th Cir. 2005) (setting aside an FTC decision that a patent-litigation settlement agreement constituted an unreasonable restraint of trade);
300. Boise Cascade Corp. v. FTC, 637 F.2d 573, 577-81 (9th Cir. 1980) (determining that the FTC presented insufficient evidence of anticompetitive pricing to establish a violation of the FTC Act);
301. FTC v. Arch Coal, Inc., 329 F. Supp. 2d 109, 157-60 (D.D.C. 2004) (rejecting the FTC's theory of tacit coordination to deny a merger of coal companies).
302. Crane, supra note 25, at 21, 38.
303. See generally Daniel A. Crane, Patent Settlements, in ISSUES IN COMPETITION POLICY (Dale Collins ed., forthcoming 2008) (manuscript at 4-6, on file with the Texas Law Review) (addressing the problem of whether pharmaceutical-patent settlements utilizing exit payments result in monopolistic, deadweight losses, or increased incentives for innovation).
304. See FED. TRADE COMM'N, GENERIC DRUG ENTRY PRIOR TO PATENT EXPIRATION: AN FTC STUDY (2002), available at http://www.ftc.gov/os/2002/07/genericdrugstudy.pdf.
305. See, e.g., Joseph F. Brodley, Questions for FTC/DOJ IP and Antitrust Patent Settlement Hearing (Apr. 24, 2002), available at http://www.ftc.gov/opp/intellect/020502josephfbrodley.pdf.
306. See In re Schering-Plough Corp., No. 9297, 2003 WL 22989651 (F.T.C. Dec. 8, 2003), vacated sub nom. Schering-Plough Corp. v. FTC, 402 F.3d 1056.
307. See SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 201-02 (1947) (permitting the practice of agency adjudicatory rule making).
308. See Press Release, Fed. Trade Comm'n, Commission Rules Schering-Plough, Upsher, and AHP Illegally Delayed Entry of Lower-Cost Generic Drug (Dec. 18, 2003), available at http://www.ftc.gov/opa/2003/12/ schering.shtm ("[T]he Commission's order announced today applies only to Schering and Upsher. The order broadly prohibits litigation settlements under which a generic manufacturer 'receives anything of value' and agrees itself to defer its own research and development, production, or sales activities.").
309. Schering-Plough Corp. v. FTC, 402 F.3d 1056, 1076 (11th Cir. 2005). The United States Supreme Court denied the FTC's petition for certiorari upon the recommendation of the Solicitor General's office, doubtlessly creating some friction between the Justice Department and the FTC. See FTC v. Schering-Plough Corp., 126 S. Ct. 2929 (2006) (denying certiorari);
310. Brief for the United States as Amicus Curiae, FTC, 126 S. Ct. 2929 (No. 05-273) (arguing for denial of certiorari).
311. See Schering-Plough Corp., 402 F.3d at 1063 (beginning its legal analysis with the framework established in Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 344 F.3d 1294, 1312-13 (11th Cir. 2003)).
312. See Valley Drug Co., 344 F.3d at 1295-96 (introducing the case as "a private antitrust lawsuit, or rather numerous private antitrust lawsuits, brought against three pharmaceuticals manufacturers").
313. Schering-Plough Corp., 402 F.3dat 1064, 1066-67, 1068 n.18, 1073, 1075 n.26, 1076.
314. Valley Drug Co. v. Geneva Pharm., Inc., 344 F.3d 1294, 1312-13 (11th Cir. 2003).
315. Compare Valley Drug Co., 344 F.3d 1294 (issuing its opinion in a private antitrust suit on September 15, 2003), with In re Schering-Plough Corp., No. 9297, 2003 WL 22989651 (F.T.C. Dec. 8, 2003) (announcing the $2 million limit on reverse payments for the first time on December 8, 2003), vacated sub nom. Schering-Plough Corp. v. FTC, 402 F.3d 1056.
316. See supra notes 168-74 and accompanying text.
317. See, e.g., supra note 131 and accompanying text (describing a jury's particular strength in determining intent, truthfulness, knowledge, and moral culpability-necessary determinations in a criminal enforcement proceeding-and discussing the jury's role in price-fixing prosecution of executives from the auction houses of Sotheby's and Christie's).
318. See Thomas O. Barnett, Assistant Att'y Gen., Antitrust Div., U.S. Dep't of Justice, Presentation at the Georgetown Law Global Antitrust Enforcement Symposium: Global Antitrust Enforcement 1-2 (Sept. 26, 2007), available at http://www.usdoj.gov/atr/public/speeches/226334.pdf ("Here in the United States, prosecuting cartel offenses-and deterring the formation of cartels and the activities of cartelists - continues to be our highest priority.").
319. See Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 986 (9th Cir. 2000) (discussing price-fixing agreements as per se antitrust violations).
320. See, e.g., id. ("When a per se violation such as horizontal price fixing has occurred, there is no need to define a relevant market or to show that the defendants had power within the market").
321. See supra notes 123-31 and accompanying text.
322. See, e.g., Broad. Music, Inc. v. CBS, 441 U.S. 1, 8 (1979) (describing price-fixing agreements as illegal per se because they "are so plainly anticompetitive, and so often lack . . . any redeeming virtue" (citations and internal quotation marks omitted));
323. Richard A. Posner, Vertical Restraints and Antitrust Policy, 72 U. CHI. L. REV. 229, 241 (2005) (describing price fixing as "entirely lacking in possible redeeming economic virtues").
324. The Hart-Scott-Rodino premerger notification system that tends to limit criminal enforcement by federal authorities does not restrict private litigants. See supra note 82 and accompanying text.
325. For example, Switzerland, which does not have a general antitrust law, enacted an anticartel statute effective April 1, 2004. J. Anthony Chavez, The Carrot and the Stick Approach to Antitrust Enforcement, in 2 47TH ANNUAL ANTITRUST LAW INSTITUTE 519, 531 (PLI Corporate Law & Practice, Course Handbook Series No. B-1542, 2006).
326. See supra notes 168-74 and accompanying text.
327. 15 U.S.C. § 15(a) (2000).
328. See generally Robert Pitofsky, Donna Patterson & Jonathan Hooks, The Essential Facilities Doctrine Under U.S. Antitrust Law, 70 ANTITRUST L.J. 443, 443-45 (2002) (describing problems arising from the "essential facilities" doctrine).
329. See, e.g., Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 31-32 (2006) (explaining that upon incorporation of petitioners' patented components into printers, manufacturers were required to purchase unpatented ink exclusively from petitioners).
330. See supra notes 185-90 and accompanying text.
331. See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 60-62 (D.C. Cir. 2001) (describing license provisions prohibiting manufacturers from removing desktop icons, altering the initial boot sequence, and altering the appearance of the desktop).
332. See supra notes 185-90 and accompanying text.
333. Crane, supra note 185 (manuscript at 20, 23).
334. Id. (manuscript at 24).
335. These are essentially the facts of Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1044 (8th Cir. 2000).
336. See, e.g., FED. TRADE COMM'N, MEDICARE PRESCRIPTION DRUG AND IMPROVEMENT ACT REQUIRES DRUG COMPANIES TO FILE CERTAIN AGREEMENTS WITH THE FEDERAL TRADE COMMISSION AND U.S. DEPARTMENT OF JUSTICE (2004), http://www.ftc.gov/os/2004/01/040106pharmrules.pdf (highlighting the filing requirement for certain agreements made by brand-namedrug manufacturers and generic-drug applicants).
337. See supra notes 149, 191-213 and accompanying text.
338. See generally Chevron U.S.A. Inc. v. Natural Res. Def Council, Inc., 467 U.S. 837, 865-66 (1984) (holding that courts should generally defer to agency interpretation of ambiguous statutes). There is also a weaker form of deference-"Skidmore deference," which is based on the Supreme Court's decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944) and applies when the agency's decision has "power to persuade" because of its "thoroughness . .. , the validity of its reasoning, [and] its consistency with earlier and later pronouncements."
339. Ronald M. Levin, Mead and the Prospective Executive of Discretion, 54 ADMIN. L. REV. 771, 772 (2002)
340. (quoting Skidmore, 323 U.S. at 140).
341. See, e.g., Estiverne v. Sak's Fifth Ave., 9 F.3d 1171, 1173 (5th Cir. 1993) (according Chevron deference to FTC commentary and interpretative readings under the Fair Credit Reporting Act).
342. Mainstream Mktg. Servs., Inc. v. FTC, 358 F.3d 1228, 1236 (10th Cir. 2004).
343. See Mattox v. FTC, 752 F.2d 116, 123-25 (5th Cir. 1985) (deferring to the FTC's interpretation of the document-privacy provisions of the Hart-Scott-Rodino Act).
344. See supra notes 220-27 and accompanying text.
345. See generally Lisa Schultz Bressman, Deference and Democracy, 75 GEO. WASH. L. REV. 761, 762 (2007) ("In recent cases ... the Court has not displayed unwavering commitment to the Chevron decision or its principle."); Levin, supra note 250, at 779 ("[T]he Supreme Court's actual administration of. .. deference has been far from tidy or predictable.");
346. Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 835 (2001) ("Little effort has been made to spell out what Congress must do to charge an agency with a statute's administration, or what sorts of agency interpretations qualify for Chevron deference once an agency has been so charged.");
347. Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-rules and Metastandards, 54 ADMIN. L. REV. 807, 813 (2002) (arguing that while Mead provided important clarifications of Chevron, the decision left major uncertainties, such as when a particular agency interpretation has the force of law, thereby triggering Chevron deference);
348. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 190 (2006) ("In the last fifteen years,... the simplest interpretations of Chevron have unraveled. . . . [T]he result has ... produc[ed] not only a decrease in agency authority, but also a significant increase in uncertainty about the appropriate approach.").
349. See Sunstein, supra note 255, at 190-91 (describing the first step of the Chevron analysis, which is to ask whether Congress has spoken clearly and unambiguously to the statutory question presented).
350. See supra note 143 and accompanying text (discussing antitrust law as a form of federal common law).
351. See, e.g., FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 240 (1972) (citing the FTC Act's legislative history indicating that Congress deliberately avoided enumeration of unfair trade practices, preferring to "leave it to the commission to determine what practices were unfair" (quoting S. REP. No. 63-597, at 13 (1914))).
352. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) ("The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent").
353. See Sunstein, supra note 255, at 199 (describing post-Chevron case law that "seemed to argue for deferential review of agency interpretations of law but stringent judicial review of agency judgments about policy").
354. Arguably, the need for judicial deference to an administrative decision is greater when the statute is vague - that is to say, susceptible to a variety of possible meanings - than when it is ambiguous - susceptible to two different meanings. See Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. AM. U. 187, 207 n.108 (1992) (discussing Chevron deference and the distinction between vagueness and ambiguity).
355. Whether or not this is the case is an open question. See Bressman, supra note 255, at 786-87 (explaining that many scholars have justified Chevron as a doctrine based on congressional intent but explaining that there is doubt as to whether that account is complete).
356. See Levin, supra note 250, at 773 (arguing that when an agency has the power to implement a statute with the force of law, "[t]he 'format' or procedural vehicle in which such an administrative interpretation appears should not matter"). Although Chevron deference may only apply to agency decisions that have the "force of law," United States v. Mead Corp., 533 U.S. 218, 226-27 (2001), this should not be an obstacle for the FTC. Cass Sunstein has asserted that "the FTC's rules do not have the force of law" because the Commission issues orders that cannot be enforced without a judicial proceeding, Sunstein, supra note 255, at 223, but this is probably a mistaken view of legal effectiveness of the FTC's orders. Since 1973, violations of the FTC's orders, whether or not those orders have been confirmed by a court, give rise to strict liability for fines.
357. See Merrill & Hickman, supra note 255, at 890-91 (describing legislative changes that made FTC's orders self-enforcing and hence binding with the force of law for Chevron purposes).
358. See ABA Section of Antitrust Law, supra note 213, at 91 n.103 ("[W]e are not optimistic about the chances that the FTC could codify antitrust-oriented prohibitions on specific types of business conduct.");
359. Mark A. Lemley & Christopher R. Leslie, Categorical Analysis in Antitrust Jurisprudence, 93 IOWA L. REV (forthcoming 2008) (manuscript at 22-23, on file with author) (arguing against categorical antitrust decision making in certain contexts).
360. See Crane, supra note 161, at 98-101 (arguing that on many issues, rules can and should play an important role in antitrust).
361. See supra notes 220-22 and accompanying text.
362. See Richard W. Murphy, Judicial Deference, Agency Commitment, and Force of Law, 66 OHIO ST. L.J. 1013, 1052-53 (2005) (arguing that Chevron deference should only apply when agency interpretations are meant to be of general applicability).
363. ANTITRUST MODERNIZATION COMM'N, REPORT AND RECOMMENDATIONS 129 (2007), available at http://www.amc.gov/report_recommendation/amc_final_report.pdf.
364. The FTC describes its own powers as "for the most part, co-extensive with the Sherman Act." In re Schering-Plough Corp., No. 9297, 2003 WL 22989651, at n.107 (F.T.C. Dec. 8, 2007), vacated sub nom. Schering-Plough Corp. v. FTC, 402 F.3d 1056 (11th Cir. 2005).
365. See Kevin M. Stack, The President's Statutory Authority to Administer the Laws, 106 COLUM. L. REV. 263, 292 n.129 (2006) (collecting cases).
366. The congressionally appointed Antitrust Modernization Commission recently considered the possibility of consolidating antitrust enforcement in a single agency and recommended against such consolidation over the dissent of three out of twelve commissioners. See ANTITRUST MODERNIZATION COMM'N, supra note 268, at 129-32 (acknowledging criticism of the system of dual enforcement but recommending no comprehensive changes because the costs of moving to a single-agency system would outweigh the benefits).
367. See supra notes 205-06 and accompanying text.
368. See Mclnerney, supra note 212, at 807-08 (describing how Rule 10b-5 came to create an implied cause of action enforceable in private litigation).
369. See supra note 209 and accompanying text.
370. The Schering decision, discussed supra notes 223-27 and accompanying text, is a recent example of a court rejecting the FTC's interpretation of the FTC Act based on an earlier Sherman Act decision in private litigation. Other similar decisions are discussed in Crane, supra note 25, at 41-42.
371. Crane, supra note 25, at 41-42.
372. Id.
373. In theory, at least, the courts' past interpretations of the antitrust statutes should not override the FTC's reasonable interpretation of the FTC Act. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (holding that a court's prior judicial construction of a statute trumps an agency's construction "only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion"). But this assumes that the courts are viewing the FTC's creation of antitrust liability rules through the lens of Chevron deference, which does not appear to be the case.
374. In one sense, giving the FTC a greater norm-creation role at the expense of Article III courts would seem to be a countertechnocratic move. Insofar as technocratic solutions aim to insulate decision makers from popular political pressure, Article III judges with life tenure seem to be more insulated than FTC commissioners. Further, administrative law, unlike the judicial process, typically requires public consultation through notice and comment.
375. See 5 U.S.C. §§ 552-553 (2000). So it is possible that judicial norm creation is more politically insulated whereas administrative decision making is more specialized, which would result in the courts and agencies splitting attributes of technocracy as I have defined them. However, as described above, judicial norm creation is untechnocratic insofar as Article III courts borrow antitrust norms heavily from their experiences with private litigation, which is driven by private interests and occur under the shadow of populist juries.
376. See supra notes 208-27 and accompanying text.
377. Cass R. Sunstein, The Laws of Fear, 115 HARV. L. REV. 1119, 1164-65 (2002) (book review).
378. See HOVENKAMP, supra note 99, at 1 (reporting that consensus has been reached on the goals of antitrust law); Cavanagh, supra note 48, at 220 ("Over the last fifteen years, a bipartisan consensus has emerged regarding the goals of antitrust enforcement.");
379. Robert T. Pitofsky, Antitrust at the Turn of the Twenty-first Century: A View from the Middle, 76 ST. JOHN'S L. REV. 583, 583 (2002) (noting the broad "'convergence' of antitrust thinking in the United States").
380. See ROBERT H. BORK, THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF 15-45 (1978) (detailing the history of antitrust policy in the United States);
381. HOVENKAMP, supra note 99, at 1-2 (remarking on a few of the early antitrust-policy goals that were directly at odds with consumer welfare);
382. Herbert Hovenkamp, Distributive Justice and the Antitrust Laws, 51 GEO. WASH. L. REV. 1, 1 (1982) (describing a few of the "wide variety" of alternative policy goals for antitrust law);
383. Robert H. Lande, Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged, 50 HASTINGS L.J. 871, 911-35 (1999) (articulating alternative purposes served by the existence of antitrust laws).
384. On the legislative history of the Sherman Act, see WILLIAM LETWIN, LAW AND ECONOMIC POLICY IN AMERICA: THE EVOLUTION OF THE SHERMAN ANTITRUST ACT 53-99 (1965), which traces the history of the Sherman Act's passage.
385. ANTITRUST MODERNIZATION COMM'N, supra note 268, at 35-36;
386. see also HOVENKAMP, supra note 99, at 1 (stating that there is a broad consensus about the goals of antitrust law, the primary goal being the protection of consumers);
387. RICHARD A. POSNER, ANTITRUST LAW 2 (2d ed. 2001) ("[T]he only goal of antitrust law should be to promote efficiency in the economic sense . . . .");
388. Thomas O. Barnett, Substantial Lessening of Competition-The Section 7 Standard, 2005 COLUM. BUS. L. REV. 293, 295-96 ("One critical development during the last thirty years of antitrust enforcement has been the consensus that antitrust should focus on consumer welfare.");
389. Thomas G. Krattenmaker et al., Monopoly Power and Market Power in Antitrust Law, 76 GEO. L.J. 241, 244 (1987) (arguing that a consensus is emerging that antitrust law should protect consumer welfare).
390. Williamson, supra note 153, at 18-19.
391. See, e.g., Barnett, supra note 283, at 297 (illustrating this principle with a graph entitled "Welfare: Producers Gain and Consumers Lose"). Barnett, who is currently the Assistant Attorney General in charge of the Antitrust Division, reports that "the consumer welfare and total welfare standards can diverge, although I think it is a rare case in practice." Id.
392. See HOVENKAMP, supra note 99, at 11 (describing the history of U.S. antitrust law as "overly ideological").
393. See generally RUDOLPH J.R. PERITZ, COMPETITION POLICY IN AMERICA, 1888-1992: HISTORY, RHETORIC, LAW (1996) (chronicling the course of competition policy with respect to freedom from both government and private economic power through six eras in American history).
394. See William H. Page, Ideological Conflict and the Origins of Antitrust Policy, 66 TUL. L. REV. 1, 28-29 (1991) (noting Americans' dissatisfaction with the laissez-faire approach and the subsequent growth of interventionist reform movements and their supporting ideologies).
395. Robert Pitofsky, The Political Content of Antitrust, 127 U. PA. L. REV. 1051, 1051 (1979).
396. See, e.g., Peter J. Hammer, Antitrust Beyond Competition: Market Failures, Total Welfare, and the Challenge of Intramarket Second-Best Tradeoffs, 98 MICH. L. REV. 849, 853-67 (2000) (detailing the alternative benefits and drawbacks that must be weighed during the application of antitrust law);
397. see also BORK, supra note 282, at 80, 79-80 (describing "[v]alue trade-offs in antitrust litigation").
398. See generally Thomas Chen, Authorized Generics: A Prescription for Hatch-Waxman Reform, 93 VA. L. REV. 459, 478-86 (2007) (discussing the competitive harms of authorized generics).
399. Robert B. Reich, Public Administration and Public Deliberation: An Interpretive Essay, 94 YALE L.J. 1617, 1637 (1985).
400. Id. at 1632-34.
401. Id. at 1633.
402. Id. at 1632-33.
403. See id. at 1635-37. Ultimately, the ASARCO question was mooted when the mine closed because of falling copper prices. Id. at 1634;
404. see also Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 89-91 (1995) (arguing that the results of the ASARCO experiment were, at best, mixed because the issues may have been too sophisticated for public input).
405. See, e.g., Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562, 631, 630-31 (1992) ("[T]he substance of modem environmental law is a composite of moral decisions-about the levels of protection to be accorded such noncommodity values as human health, aesthetics, and responsibility toward nonhuman species and ecosystems-and instrumental decisions about the best way to achieve these morally based goals.").
406. Reich, supra note 291, at 1632.
407. Richard J. Pierce, Jr., Democratizing the Administrative State, 48 WM. & MARY L. REV. 559, 597 (2006);
408. see also David Schoenbrod, Goals Statutes or Rules Statutes: The Case of the
409. Clean Air Act, 30 UCLA L. REV. 740, 756-62 (1983) (describing conflicts in the goals of the Clean Air Act).
410. See Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1719 (1997) (finding that ideology significantly influences the D.C. Circuit's decision making in environmental matters).
411. Reich, supra note 291, at 1633-34.
412. See supra note 122 and accompanying text.
413. See supra notes 107-13 and accompanying text.
414. See supra notes 144-47 and accompanying text.
415. See supra notes 151-52 and accompanying text.
416. See, e.g., STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 22-29 (1993) (describing multiple flaws in human decision making about risks and giving examples);
417. W. KIP VISCUSI, RATIONAL RISK POLICY 97-99 (1998) (arguing that policy makers do not follow a rational cost-benefit analysis when spending money to avert risks of death) .
418. See Barbara S. Swain & Dan R. Gallipeau, Juror Attitudes in Antitrust Cases, ANTITRUST, Summer 1994, at 14, 15, 15-17 ("In some venues, as many as 75 percent of the jurors think that large corporations regularly use unethical and unfair tactics to bully smaller competitors and squeeze them out of the marketplace."). A recent empirical study of patent litigation reports a similar juror bias against large corporations in patent cases. See Kimberly A. Moore, Populism and Patents, 82 N.Y.U. L. REV. 69 (2007).
419. POSNER, supra note 283, at 215.
420. See generally WILLIAM F. SHUGHART II, ANTITRUST POLICY AND INTEREST-GROUP POLITICS 82-120 (1990) (describing private interests as factors in public enforcement of antitrust at the Department of Justice and Federal Trade Commission and the influence of special-interest politics in congressional antitrust involvement);
421. Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039, 1059-67 (1997) (arguing that enhanced judicial control over administrative agencies from 1967 to 1983 was driven by concerns about agency capture);
422. Christopher S. Yoo, The Rise and Demise of the Technology-Specific Approach to the First Amendment, 91 GEO. L.J. 245, 350 (2003) ("Experience with the administrative process and growing concerns about agency capture have shattered faith in technocracy that characterized the Progressive era.").
423. See Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1713 (1975) ("It has become widely accepted, not only by public interest lawyers, but by academic critics, legislators, judges, and even by some agency members, that the comparative overrepresentation of regulated or client interests in the process of agency decision results in a persistent policy bias in favor of these interests." (footnotes omitted));
424. see also Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 42 (1991) (collecting agency-capture literature).
425. See Kovacic, supra note 166, at 77 (describing the Chicago School view that the antitrust-enforcement agencies "desired and greatly succeeded in aggrandizing their power because the affected private sector interests were too timid or well-organized to resist DOJ and FTC efforts to expand their authority").
426. See supra notes 167-83 and accompanying text.
427. Pitofsky, supra note 288, at 1065.
428. HORIZONTAL MERGER GUIDELINES, supra note 176, at 15.
429. HOVENKAMP, supra note 99, at 213.
430. See, e.g., Ken Heyer, A World of Uncertainty: Economics and the Globalization of Antitrust, 72 ANTITRUST L.J. 375, 379, 378-79 (2005) (noting that while the advancement of quantitative tools has aided antitrust analysis, "[d]ealing efficiently with [the] uncertainty and imprecision" of those tools is extremely important). Heyer, the Economics Director at the Justice Department's Antitrust Division, admits that "the new and improved economic tools, their high degree of sophistication, and emphasis on quantitative prediction risk leaving one with a false sense as to their accuracy and precision."
431. Id. at 378. He outlines further measures that can be taken to improve the quality of antitrust analysis.
432. See, e.g., id. at 417-18.
433. This argument is simply an application of the Coase theorem, which predicts that where transaction costs are zero, parties will bargain to the efficient solution regardless of the initial assignment of rights. See R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 43, 42-44 (1960) (arguing that consideration of negative externalities and costs borne by society must be incorporated into an "opportunity cost approach" to economic policy).
434. See supra notes 109-10 and accompanying text.
435. See supra notes 177-83 and accompanying text.
436. United States v. Broad. Music, Inc., 426 F.3d 91, 92 (2d Cir. 2005).
437. See George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1, 4 (1984) ("The most important assumption of [our] model is that potential litigants form rational estimates of the likely decision, whether it is based on applicable legal precedent or judicial or jury bias.").
438. William J. Baer, Reflections on Twenty Years of Merger Enforcement Under the Hart-Scott-Rodino Act, 65 ANTITRUST L.J. 825, 825-26 (1997).
439. See, e.g., AKIN, supra note 4, at 164-65 (explaining American society's rejection of technocracy in the 1930s as partially based on the perceived incompatibility between democratic control and technocratic methods).
440. See Crane, supra note 89, at 1210-11 (arguing that modern American antitrust history is not characterized by gradual change but instead by significant shifts in dominant schools of thought over different time periods).
441. See, e.g., id. at 1211 (predicting that the current antitrust "epoch of modesty" might be upset by a rise in antiglobalization political movements that could reinterpret antitrust regulations to limit international corporate growth).
442. Former Democratic presidential candidate John Edwards, who has generally advocated protectionist economic views, issued a call for much more aggressive antitrust enforcement. See Senator John Edwards, Submission to the American Antitrust Institute 1 (Oct. 2, 2007), available at http://www.antitrustinstitute.org/archives/files/aai- %20Presidential%20campaign%20%20Edwards%2010-1-07_100220071538.pdf ("[F]orces in Washington sometimes seem to have forgotten that antitrust law even exists.").