Amicus briefs and the sherman act: Why antitrust needs a new deal

Texas Law Review

Volumn 89, Issue 6, 2011, Pages 1247-1291

  Haw, Rebecca ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 79959632351     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (335)

1. 15 U.S.C. 1& F02D;2 (2006).
2. William Howard Taft wrote that the words of the Sherman Act were written "with the intention that they should be interpreted in the light of common law, just as it has been frequently decided that the terms used in our federal Constitution are to be so construed." WILLIAM HOWARD TAFT, THE ANTI-TRUST ACT AND THE SUPREME COURT 3 (1914).
3. Frank H. Easterbrook, Vertical Arrangements and the Rule of Reason, 53 ANTITRUST L.J. 135, 136-37 (1984).
4. Abbott B. Lipsky, Antitrust Economics-Making Progress, Avoiding Regression, 12 GEO. MASON L. REV. 163-165 (2003) ("[T]he rapid assimilation of microeconomics into antitrust thinking makes almost every antitrust controversy an exercise in microeconomic analysis.").
5. Daniel A. Crane, Technocracy and Antitrust, 86 TEXAS L. REV. 1159, 1212 (2008) ("Within the last few decades a broad consensus has emerged that consumer welfare and economic efficiency are the overriding, if not exclusive, goals.")
6. Easterbrook, supra note 3, at 138 (stating that the Court views antitrust laws as a consumer-welfare prescription).
7. Brief of the Commonwealth of Virginia and Eight Other States as Amici Curiae in Support of the Petitioners at 3-6, Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 129 S. Ct. 1109 (2009) (No. 07-512), 2008 WL 4154540 (arguing that the Ninth Circuit's decision harms consumers and protects competitors rather than competition)
8. Brief of Amici Curiae Economists in Support of Petitioners, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (No. 05-1126), 2006 WL 2506633 (discussing how the parallel-behavior-is-enough standard would increase economic costs).
9. Stephen Calkins, The Antitrust Conversation, 68 ANTITRUST L.J. 625 (2001)
10. Stephen Calkins, Supreme Court Antitrust 1991-92: The Revenge of the Amici, 61 ANTITRUST L.J. 269 (1993).
11. 5 U.S.C. § 553 (2006).
12. Calkins, The Antitrust Conversation, supra note 7, at 628-38 (highlighting the ways in which amici's arguments have advanced antitrust doctrine).
13. For the case for administrative antitrust decision making
14. Crane, supra note 5, at 1212-1214 (discussing three features of modern antitrust that make it particularly suited to technocracy).
15. 129 S. Ct. 1109 (2009).
16. 551 U.S. 877 (2007).
17. Ninety-five percent of cases filed before the Supreme Court between 1996 and 2003 included at least one amicus brief. Omari Scott Simmons, Picking Friends from the Crowd: Amicus Participation as Political Symbolism, 42 CONN. L. REV. 185-193 (2009).
18. Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 828-830 (2000) (concluding that amicus briefs do have an impact on the Court, particularly when they come from major institutional litigants or the Solicitor General).
19. U.S. CONST. art. III, § 2.
20. Michael K. Lowman, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41 AM. U. L. REV. 1243, 1280-1282 (1992) (warning that expanded use of the amicus device allows would-be litigants to circumvent the standing requirements of Article III).
21. Some scholars have gone as far as to find a constitutional right to participate as amicus curiae. Professor Ruben J. Garcia locates the right in the First Amendment's prohibition on governmental interference with the "Right of the people to petition the government for a redress of grievances."
22. Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLA. ST. U. L. REV. 315, 336-38 (2008) (quoting U.S. CONST. amend. I) (emphasis added).
23. SUP. CT. R. 27.9, 306 U.S. 687, 708-09 (1939) (repealed 1954)
24. Kearney & Merrill, supra note 14, at 761 n.54 (chronicling the Supreme Court's changes to the rules governing amicus briefs).
25. Kearney & Merrill, supra note 14, at 761-62.
26. Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 YALE L.J. 694, 709-11 (1963) (describing the increasing irritation with amicus participation building during the 1940s and reaching "an apex of notoriety and criticism" in the early 1950s, due in large part to lobbying from liberal groups in cases involving communism).
27. Kearney & Merrill, supra note 14, at 763.
28. SUP. CT. R. 37. 3.
29. Kearney & Merrill, supra note 14, at 762;
30. R. Hayden & Kelly Fitzgerald Pate, The Role of Amicus Briefs, 70 ALA. LAW. 115, 118 (2009) (asserting that the U.S. Supreme Court has traditionally been open to amicus curiae briefing); Simmons, supra note 13, at 195-96 (commenting on the Supreme Court's allowance of virtually unlimited amicus participation).
31. Kearney & Merrill, supra note 14, at 749.
32. Professor Samuel Krislov has traced the rise of amicus advocacy in part to the "Emergence of administrative agencies." Krislov, supra note 21, at 706. For a more recent observation along these lines, see Simmons, supra note 13, at 193.
33. Nlrb V. Jones Laughlin Steel Corp., 301 U.S. 1, 49 (1937).
34. Gary Lawson, FEDERAL ADMINISTRATIVE LAW 192 (4th ed. 2007).
35. George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557, 1678-79 (1996) (describing the APA as the result of years of conservative attempts to curtail the power of New Deal administrative agencies).
36. Simmons, supra note 13, at 194-195.
37. Perhaps this is why Justices Frankfurter and Black, the former preferring an early form of judicial minimalism and the latter more willing to "depart from a role of narrowly resolving adversary disputes," disagreed about the proper role for amicus briefs. Krislov, supra note 21, at 717.
38. Samuel Krislov, Writing in 1963, traced the rise of amicus advocacy in part to the "emergence of administrative agencies."
39. Id. at 706. For further discussion of the Frankfurter-Black debate about amicus curiae,
40. Simmons, supra note 13, at 195.
41. 208 U.S. 412 (1908).
42. Brief for the State of Oregon, Muller V. Oregon, 208 U.S. 412 (1908) (No. 107), 1908 WL 27605. Justice Brandeis's role in the litigation was ambiguous, since he appeared for the State of Oregon, believing that "'the status of appearing as an official participant on behalf of the state seemed. an important element of strength for the defense.'
43. Krislov, supra note 21, at 708 (QUOTING LOWELL MASON, THE LANGUAGE OF DISSENT 248 (1959)). It was not until 1916 that Frankfurter observed that "Brandeis' role was essentially that of amicus curiae." Id. at 708.
44. Garcia, supra note 17, at 340 n.150.
45. Ellie Margolis, Beyond Brandeis: Exploring the Uses of Non-Legal Materials in Appellate Briefs, 34 U.S.F. L. REV. 197-203 (2000) (noting that the introduction of nonlegal material at the appellate stage "has been done since the early twentieth century, when Louis Brandeis submitted his brief in Muller v. Oregon").
46. Id. at 199 & n.12.
47. 347 U.S. 483 (1954).
48. Margolis, supra note 14, at 230 (asserting that the Supreme Court relied on empirical studies that indicated segregation "generates a feeling of inferiority as to. status in the community that may affect. hearts and minds in a way unlikely ever to be undone" to support the decision in Brown).
49. Kearney & Merrill, supra note 12, at 748-49.
50. Id. at 778.
51. Id. at 816.
52. In a media interview, Justice Breyer said that amicus briefs containing technical information "'play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions. Justice Breyer Calls for Experts to Aid Courts in Complex Cases, N.Y. TIMES, Feb. 17, 1998, at A17.
53. Kelly J. Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & POL. 33-41 (2004)
54. Luther T. Munford, When Does the Curiae Need an Amicus?, 1 J. APP. PRAC. & PROCESS, 279-281 & n.14 (1999) (observing that expertise can be a benefit offered by amici and giving an example from the New Mexico Supreme Court involving the apportionment of water rights).
55. For defenses of this political use of amicus participation
56. Garcia, supra note 17, at 317 ("The amicus brief is a form of speech and petition, to which the courts should give due consideration."), and Simmons, supra note 13, at 190 ("[T]he political symbolism of amicus curiae participation reassures the public. of the Court's democratic character.").
57. For a discussion of Judge Posner's attitude towards amicus participation and his hostility's influence on other federal judges
58. Garcia, supra note 17, at 326-30.
59. Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542-545 (7th Cir. 2003).
60. Ryan V. Commodity Futures Trading Comm'n, 125 F.3d 1062-1063 (7th Cir. 1997) ("The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants' briefs, in effect merely extending the length of the litigant's brief. Such amicus briefs should not be allowed. They are an abuse."). Ostensibly, Supreme Court Rule 37 allows only amicus filings that "bring[] to the attention of the Court relevant matter not already brought to its attention by the parties [that] may be of considerable help to the Court." But the trouble is getting someone to go through the briefs in order to determine whether it meets this standard, thereby defeating the time-saving aim of the rule.
61. Garcia, supra note 17, at 325. Professor Stephen Calkins takes a positive perspective on redundant amicus briefs, extolling their ability to provide "special emphasis" to an aspect of an antitrust case.
62. Calkins, The Antitrust Conversation, supra note 7, at 638-643.
63. Garcia, supra note 17, at 340-341 ("Amicus briefs have played an important role in communicating the views of social movements to the courts in numerous cases.").
64. Kearney & Merrill, supra note 14, at 801-811 (finding that while the total number of briefs on a side was not correlated with success, briefs filed by the Solicitor General and other institutional filers significantly affected outcomes).
65. Id. at 803-804. For a broader discussion of the Solicitor General's participation as amicus curiae,
66. Simmons, supra note 13, at 211-214.
67. Lynch, supra note 43, at 50 (reporting that 11% of Supreme Court clerks responding to the survey said that the NAACP's amicus briefs "always receive closer attention"). The NAACP's influence with the Court has been long-standing. The group filed an amicus brief as early as 1915 in Guinn v. United States, 238 U.S. 347 (1915).
68. Id. at 49 (reporting that 33% of Supreme Court clerks responding to survey said that they gave the ACLU's amicus briefs more consideration).
69. Calkins, The Antitrust Conversation, supra note 7, at 628-631 (discussing examples of "an important antitrust repeat playing tak[ing] an unpredicted position").
70. CF. Garcia, supra note 17, at 338-40 (explaining that in cases involving administrative rules, amici briefs provide an opportunity for interested parties to comment on administrative rulemaking, and that amicus participation in statutory cases can perform a similar function in cases interpreting statutes).
71. Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 688 (1978) (explaining how Congress never intended to provide the full meaning of the Sherman Act but rather authorized the courts to give meaning to the statute by drawing on common law tradition).
72. Arthur S. Miller, Statutory Language and the Purposive Use of Ambiguity, 42 VA. L. REV. 23, 23, 30 (1956) (explaining that Congress's use of ambiguous statutory language is purposeful in order to delegate interpretation authority to the courts).
73. Thomas G. Hungar & Ryan G. Koopmans, Appellate Advocacy in Antitrust Cases: Lessons from the Supreme Court, 23 ANTITRUST 53-53 (2009) ("From September 2002 to October 2008, 94 petitions were filed that presented issues of antitrust law.").
74. (stating that out of 94 petitions concerning antitrust law issues, "the Court granted certiorari in only ten, a rate of less than 11 percent").
75. LAWSON, supra note 28, at 195-196 (describing the minimal restrictions on informal agency rulemaking under the APA).
76. In this way, the Court's grant of certiorari is more like an agency's announcement that a certain issue is on its agenda-these notices are published semi-annually in the Unified Agenda of Federal Regulation. Peter L. Strauss, From Expertise to Politics: The Transformation of American Rulemaking, 31 WAKE FOREST L. REV. 745, 761-62 (1996).
77. 5 U.S.C. § 553(c) (2006). For a discussion of the statement and purpose rule,
78. LAWSON, supra note 28, at 280-83.
79. LAWSON, supra note 28, at 280 (comparing the statement and purpose rule to a judicial opinion).
80. Michael Abramowicz & Thomas B. Colby, Notice-and-Comment Judicial Decisionmaking, 76 U. CHI. L. REV. 965-1023 (2009)
81. Reytblatt V. U.S. NRC, 105 F.3d 715-722 (D.C. Cir. 1997) ("An agency need not address every comment, but it must respond in a reasoned manner to those that raise significant problems.").
82. Stuart Banner, The Myth of the Neutral Amicus: American Courts and Their Friends, 1790- 1890, 20 CONST. COMMENT. 111, 111 (2003). The term comes from Roman law, under which "the amicus, at the court's discretion, provided information on areas of law beyond the expertise of the court." Lowman, supra note 16, at 1248.
83. Krislov, supra note 21, at 704 ("The Supreme Court of the United States makes no pretense of such disinterestedness on the part of 'its friends.' The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented." (citation omitted)). Or, in the words of then-judge Samuel Alito, "an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court's friend." Neonatology Assocs., PA, v. Comm'r, 293 F.3d 128, 131 (3d Cir. 2002).
84. Bilski V. Kappos, 130 S. Ct. 3218-3248 (2010) (Stevens, J., concurring) ("[P]etitioners and their amici.")
85. McDonald V. City of Chi., 130 S. Ct. 3020-3047 (2010) Municipal respondents and their amici.
86. This is perhaps the reason why some of the most powerful briefs in antitrust cases are those in which the author advocates a position apparently contradictory to its interests. For example, amici briefs of the United States, though always influential, take on a particular persuasiveness when they support an antitrust defendant in the Supreme Court. "Attention is drawn any time an important antitrust repeat player takes an unpredicted position. No court can lightly dismiss an amicus filing by the Antitrust Division, the FTC, or the states that recommends a resolution against their litigating interests."
87. Calkins, The Antitrust Conversation, supra note 7, at 628.
88. Rejecting Judge Posner's criticism of partisan amicus briefs, then-Judge Alito wrote that bias among amici comports with "the fundamental assumption of our adversary system that strong (but fair) advocacy on behalf of opposing views promotes sound decision making." Neonatology Associates, 293 F.3d at 131.
89. Kearney & Merrill, supra note 14, at 766. The Court amended its formal rules on amicus participation in 1997 to require each nongovernment-authored amicus brief to "indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and [] identify every person other than the amicus curiae, its members, or its counsel, who made such monetary contribution." SUP. CT. R. 37.6.
90. Jaffee V. Redmond, 518 U.S. 1, 35-36 (1995) (Scalia, J., dissenting) ("Not a single amicus brief was filed in support of petitioner. That is no surprise. There is no self-interested organization out there devoted to pursuit of the truth in the federal courts. The expectation is, however, that this Court will have that interest prominently-indeed, primarily-in mind."). This attitude is widespread.
91. Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Balance of Access, Efficiency, and Adversarialism, 27 REV. LITIG. 669, 700, 708-09 (2008) (reporting that the majority of surveyed federal court judges and Justices consider an amicus curiae's financial relationship to a litigant when deciding whether to grant leave to file).
92. LAWSON, supra note 28, at 240.
93. Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455-468 (D.C. Cir. 1998) (affirming that agencies must respond to comments that are "relevant and significant")
94. Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104-122 n.17 (D.C. Cir. 1987) (clarifying that an agency is not obliged to issue rules that comply with the position adopted by the majority of comments).
95. Penson V. Ohio, 488 U.S. 75-84 (1988) The paramount importance of vigorous representation follows from the nature of our adversarial system of justice.
96. John O. McGinnis & Charles W. Mulaney, Judging Facts Like Law, 25 CONST. COMMENT. 69, 109 (2008) ("[T]he judicial process has trouble capturing the multiple perspectives that best map reality, because in some cases there may be more plausible positions than there are litigants.").
97. Richard A. Posner, The Federal Trade Commission: A Retrospective, 72 ANTITRUST L.J. 761-771 (2005) ("The usual complainant about a sales practice is not a consumer, who generally has little to gain from even a successful proceeding, but a competitor of the seller who is employing the practice.").
98. See United States v. Barnett, 376 U.S. 681, 738 (1964) This court has recognized the power of federal courts to appoint 'amici to represent the public interest in the administration of justice. Quoting Universal Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 581 (1946)).
99. Kearney & Merrill, supra note 14, at 754 (discussing the increase in the mean number of amicus briefs per case from about.50 in the late 1940s to 4.23 in the 1990s)
100. Stuart Shapiro, Presidents and Process: A Comparison of the Regulatory Process under the Clinton and Bush (43) Administrations, 23 J.L. & POL. 393, 404-405 (2007) (comparing the number of comments federal agencies received on rules under both the Clinton and Bush administrations). For example, in a typical EPA case from the 1980s the agency received 192 comments raising 400 issues. RICHARD J. PIERCE ET AL., ADMINISTRATIVE LAW & PROCESS 329 (5th ed. 2009).
101. 5 U.S.C. 553(c) (2006).
102. SUP. CT. R. 37.
103. And this cost is incurred even if the Court ultimately denies the party the right to file. "It is awkward, to say the least, to bill a client for a brief the court refuses to accept." Munford, supra note 43, at 282.
104. SUP. CT. R. 37 (indicating various requirements for the filing of amicus curiae briefs).
105. SUP. CT. R. 33 (listing specific color, font, and weight requirements for different types of documents submitted to the Court)
106. Lynch, supra note 43, at 44 (reporting clerks' bias against amicus briefs with even minor variations from the Court's paper weight and font requirements).
107. Steven P. Croley, REGULATION AND PUBLIC INTERESTS 118-19 (2008).
108. Nat'l Petroleum Refiners' Ass'n v. FTC, 482 F.2d 672, 683 (D.C. Cir. 1973) (observing that rulemaking opens up agency policy making to a broader range of criticism and advice than adjudication)
109. CF Croley, supra note 83, at 118 ("Formally[] at least, rulemaking is open and inclusive, and parties can participate on their own initiative and directly with the agency.").
110. SUP. CT. R. 37.2(a) (setting forth the filing requirements for amicus briefs but not explicitly requiring briefs to support one side or the other).
111. Leegin, Two economists filing as amici refused to take sides.
112. William S. Comanor & Frederic M. Scherer as Amici Curiae Supporting Neither Party, Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007) (No. 06-480), 2007 WL 173679;
113. McGinnis & Mulaney, supra note 74, at 109 ("[T]he judiciary permits amicus briefs to represent positions different from those advanced by the plaintiff or defendant.").
114. Eugene Gressman et al., SUPREME COURT PRACTICE 740 (9th ed. 2007).
115. Robert A. Kagan, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 244 (2003) (observing that American lawyers are trained to argue for their clients rather than for the "best" overall resolution).
116. Professor Horowitz makes the broader point that "amici do not have the ability to shape the issues or the factual record. amicus participation so often begins on appeal, after the record is frozen." Donald L. Horowitz, THE COURTS AND SOCIAL POLICY 44 n.56 (1977).
117. KAGAN, supra note 87, at 244.
118. Technically, the Court can request amicus participation, but it usually only uses this power to ask the Solicitor General to file a brief. See Garcia, supra note 17, at 323 (noting that federal courts have the power to request amicus briefs and that the Supreme Court regularly invites the Solicitor General to submit them).
119. LAWSON, supra note 28, at 8-9 (explaining that agencies spend most of their time "analyzing, investigating, synthesizing, deliberating, planning, and studying").
120. The FCC frequently uses this means of gathering information, a precursor to a proposed rulemaking
121. 47 U.S.C. § 1302(b) (mandating the Commission to initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans).
122. Richard J. Pierce, Administrative LAW TREATISE 946 (5th ed. 2010) (explaining that administrative agencies are not significantly limited in their ability to consider various legislative facts).
123. Robert L. Stern et al., SUPREME COURT PRACTICE: FOR PRACTICE IN THE SUPREME COURT (8th ed. 2002) (explaining that since 1980 efforts of private amici to participate in arguments have seldom been successful, while the Court is more liberal to the Solicitor General and representatives of states)
124. FED. R. APP. P. 29 (allowing amici oral argument only with court approval).
125. Although the Court is comprised of generalists and any Justice can write an opinion about anything, often the Justices informally specialize in an area of law, either because of expertise or interest. This is not the case in the last ten years of antitrust jurisprudence. Of the three Justices who have written more than one opinion (majority, concurrence, or dissent) in a substantive antitrust case, no one stands out as having written a particularly large share. Justice Breyer has written three opinions. Pac. Bell Tel. Co. V. Linkline Commc'ns, Inc., 129 S. Ct. 1109, 1123-25 (2008) (Breyer, J., concurring)
126. Credit Suisse Sec. (USA) LLC V. Billing, 551 U.S. 264 (2007)
127. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004). Justice Stevens has written four opinions. Am. Needle, Inc. v. Nat'l Football League, 130 S. Ct. 2201 (2010)
128. Credit Suisse, 551 U.S. at 285-87 (Stevens, J., concurring)
129. Ill. Tool Works, Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006)
130. Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 182-88 (2006) (Stevens, J., dissenting). And Justice Thomas has written three. Credit Suisse, 551 U.S. at 287-90 (Thomas, J., dissenting)
131. Weyerhaeuser Co. V. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312 (2007)
132. Texaco, Inc. v. Dagher, 547 U.S. 1 (2006).
133. Findings and Recommendations of the Antitrust Modernization Commission: Hearing Before the H. Comm. on the Judiciary, 110th Cong. 7 (2007) (testimony of Jonathan R. Yarowsky, Vice Chair, Antitrust Modernization Commission), available at http://judiciary.house.gov/hearings/ printers/110th/35243.PDF (observing that judges "were particularly daunted by the economics" in antitrust cases).
134. For a discussion of the relatively high quality of agency science
135. Wendy E. Wagner, The "Bad Science" Fiction: Reclaiming the Debate Over the Role of Science in Public Health and Environmental Regulation, 66 LAW & CONTEMP. PROBS. 63, 73-79 (Autumn 2003).
136. For a discussion of how "consensus" of experts should be measured by agencies
137. Adrian Vermeule, The Parliament of the Experts, 58 DUKE L.J. 2231 (2009).
138. Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 ADMIN. L. REV. 1111-1114 (2000) (stating that independent agencies are independent of the political will of the Executive Branch). This justification for agency decision making has its roots in the progressive movement and the creation of the FTC, see id. at 1131-32 (noting that during the progressive era, expertise and independence were thought to "safeguard the commissions from partisan politics"), but it continues to have traction today. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3174 (2010) (observing "the constitutional legitimacy of a justification that rests agency independence upon the need for technical expertise").
139. Charles H. Koch, Administrative Law And Practice § 14:53, at 547 (3d ed. 2010) (describing the use of scientific committees which must be fairly balanced and represent divergent interests with regard to the subject matter).
140. For this antiquated view
141. works by Joseph Eastman and James Landis excerpted in Lawson, supra note 28, at 25. For the modern understanding that agency decisions are influenced by specific industry interests instead of concern for public wellbeing,
142. Rachel Barkow, Insulating Agencies: Avoiding Capture through Institutional Design, 89 TEXAS L. REV. 15, 21-24 (2010).
143. Reytblatt V. U.S. NRC, 105 F.3d 715-722 (D.C. Cir. 1997).
144. Lynch, supra note 43, at 43-45 (describing the process by which Supreme Court clerks review amicus briefs).
145. Justice Ginsburg has said "that her clerks often divide the amicus briefs into three piles: those that should be skipped entirely, those that should be skimmed, and those that should be read in full." Simard
146. supra note 70, at 688.
147. FED. R. APP. P. 29 (allowing amici oral argument only with court approval); Abramowicz & Colby, supra note 63, at 992 ("[T]hird parties generally cannot participate in oral argument.").
148. Dominique Custos, The Rulemaking Power of Independent Regulatory Agencies, 54 AM. J. COMP. L. 615-625 (2006) ("The exigencies judicially imposed on the writing of the statement of a rule by an American IRA seem to be unparalleled.")
149. Strauss, supra note 60, at 757 ("An agency would be well advised to write its statement of basis and purpose in a manner clearly demonstrating the factual basis for and reasonableness of its judgments, and that it had taken a 'hard look' at any matters that had proved controversial.").
150. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402-416 (1971).
151. Pierce et al., supra note 77, at 329
152. Strauss, supra note 60, at 760.
153. Croley, supra note 83, at 99.
154. Lance McMillan, The Proper Role of Courts: The Mistakes of Leegin, 2008 WIS. L. REV. 405, 457 n.246 ("[L]egislative inertia often makes it difficult to overrule even unpopular decisions."). But see 15 U.S.C. § 45(a) (overruling the Supreme Court's decision in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951)).
155. Daubert V., Merrell Dow Pharm., 509 U.S. 579 (1993)
156. Garcia, supra note 17, at 352-55
157. CF. Simmons, supra note 13, at 190 n.12 ("[E]vidence and arguments presented in amicus briefs. have not been challenged through the litigation process and are not subject to the same evidentiary safeguards as the parties' briefs.").
158. The D.C. Circuit criticized the Court's willingness to attend to an amicus's Johnny-comelately arguments, albeit in the administrative law context: I recognize that the Supreme Court has moved pretty far from traditional notions of judicial restraint that confine courts to issues presented by the parties, but I think this decision represents another large step in that regrettable process insofar as it was an amicus-an amicus who had not appeared until the case reached the Supreme Court-who made the dispositive argument, one which was never once made before us. Akins v. FEC, 146 F.3d 1049, 1050 (D.C. Cir. 1998) (citation omitted).
159. Croley, supra note 83, at 100.
160. Wagner, supra note 97, at 81 ("Courts. provide valuable oversight of the quality of agency science through their review of rulemakings and by ensuring that interested parties have an opportunity to comment on proposed regulations.").
161. Calkins, The Antitrust Conversation, supra note 7, at 658 ("The antitrust law that we know and apply is almost certainly richer and different because of the active participation of amici.").
162. U.S. CONST. art. III, 2.
163. Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990). This higher bar for antitrust standing comes from the remedial provision of the Clayton Act.
164. Brick C O. v. Illinois, 431 U.S. 720, 728-29 (1977) (holding that a pass-on theory could not be used offensively by indirect purchasers).
165. Jonathan R. Siegel, A Theory of Justiciability, 86 TEXAS L. REV. 73, 77 (2007).
166. Antonin Scalia, The Doctrine of Standing as an Essential Element of Separation of Powers, 17 SUFFOLK U. L. REV. 881, 882 (1983) (arguing that standing doctrine is an "inseparable element" of the principle of separation of powers "whose disregard will inevitably produce-as it has during the past few decades-an overjudicialization of the process of selfgovernance").
167. James W M. Moore, MOORE'S FEDERAL PRACTICE 101.60(12) (Daniel R. Coquillette et al. eds., 3d ed. 2007).
168. Scalia, supra note 122, at 882.
169. Brief of Amici Curiae Professors and Scholars in Law and Economics in Support of the Petitioners, Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 129 S. Ct. 1109 (2009) (No. 07- 512), 2007 WL 4132899
170. Brief of Amici Curiae Law Professors in Support of Respondent, Nynex Corp. v. Discon, Inc., 525 U.S. 128 (1998) (No. 96-1570), 1998 WL 331176.
171. Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004).
172. Bell Atl. Corp. V. Twombly, 550 U.S. 544 (2007).
173. Brief for Verizon Communications, Inc. National Association of Manufacturers as Amici Curiae Supporting Petitioners, Linkline, 129 S. Ct. 1109 (No. 07-512), 2008 WL 4154538.
174. Brief of AT&T Corp., Cavalier Telephone, and Competitive Telecommunications Association as Amici Curiae in Support of Respondent, Verizon, 540 U.S. at 398 (No. 02-682), 2003 WL 21767975.
175. Professor Krislov observed that "[a]rguments that might anger the Justices, doctrines that have not yet been found legally acceptable, and emotive presentations that have little legal standing can best be utilized in most instances by the amicus rather than by the principals." Krislov, supra note 21, at 712
176. Simmons, supra note 13, at 228 (discussing the use of risky emotive argumentation in amicus briefs).
177. Lowman, supra note 16, at 1260-61.
178. For example, The amici in Leegin openly asked the Court to overrule a century-old precedent. See infra subpart III(B).
179. United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945).
180. Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law 141 (3d ed. 2008)
181. Erik N. Hovenkamp & Herbert Hovencamp, The Viability of Antitrust Price Squeeze Claims, 51 ARIZ. L. REV. 273-273 (2009).
182. Phillip E. Areeda & Herbert Hovenkamp, supra note 135, at 141
183. Hovenkamp & Hovenkamp, supra note 135, at 274 (describing the traditional model of a "price squeeze" considered by Judge Learned Hand in Alcoa, which focused in part on the fact that Alcoa's pricing would drive its manufacturing rivals out of business).
184. Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 129 S. Ct. 1109-1115 (2009).
185. Id. at 1115-1116.
186. Id. at 1116.
187. Id. at 1119.
188. Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 410 (2004).
189. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993).
190. Predatory pricing claims brought under 2 of the Sherman Act must meet two requirements. First, the plaintiff must prove that its rival's prices are set "below an appropriate measure of its rival's costs." Id. at 222. Second, the plaintiff must show that the predator had "a dangerous probability" of recovering the
191. Linkline, 129 S. Ct. at 1115.
192. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985).
193. Sandeep Vaheesan, Pacific Bell v. LinkLine: Price Squeezing and the Limits of Judicial Administrability, 4 DUKE J. CONST. L. & PUB. POL'Y SIDEBAR 129, 135 (2008) (providing an example of a lower court confusing the similar but distinct concepts of price squeezing and predatory pricing).
194. A similar result would obtain if above-cost profits in the retail industry existed not because of a Cournot monopoly, but because the products were differentiated. Dennis W. Carlton, Should "Price Squeeze" Be a Recognized Form of Anticompetitive Conduct?, 4 J. COMPETITION L. & ECON. 271, 275-76 (2008).
195. Gregory J. Werden, Remedies for Exclusionary Conduct Should Protect and Preserve the Competitive Process, 76 ANTITRUST L.J. 65-76 (2009) (describing the pervasive and continuing duties a court or regulatory agency would have to take on in order to maintain an effective duty to deal that actually preserves competition).
196. To put the point yet another way: "In adjudicating predatory pricing claims, courts look to whether the defendant priced its product below its own costs. Courts deciding price squeeze claims, however, consider whether the defendant's pricing conduct reduced or eliminated the plaintiff's profit margins." Vaheesan, supra note 150, at 140.
197. For a discussion of the importance of analogy in granting certiorari to antitrust issues
198. Hungar & Koopmans, supra note 57, at 55 (discussing analogies between Weyerhaeuser and Brooke Group, Linkline, and Trinko).
199. Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 129 S. Ct. 1109-1119 (2009)
200. Carlton, supra note 151, at 276-77 (explaining the impact of a price squeeze when a duty to deal is, or is not, present).
201. Linkline, 129 S. Ct. at 1119 ("If AT&T had simply stopped providing DSL transport service to the plaintiffs, it would not have run afoul of the Sherman Act.").
202. Id. at 1116.
203. Linkline Commc'ns, Inc. v. SBC Cal., Inc., 503 F.3d 876, 885-88 (9th Cir. 2007) (Gould, J., dissenting).
204. Id. at 886.
205. Brief for Respondents at 13, Linkline, 129 S. Ct. 1109 (No. 07-512), 2008 WL 4606588 (stating that the price-squeeze claim only survives if it can satisfy the requirements of Brooke Group).
206. See Brief in Opposition at 2-4, Linkline, 129 S. Ct. 1109 (No. 07-512) 2007 WL 4458899 (arguing that a grant of certiorari is inappropriate because the Court has already established controlling precedent and a circuit split does not exist).
207. Linkline, 129 S. Ct. at 1117.
208. Brief for Verizon Communications Inc. & National Association of Manufacturers as Amici Curiae Supporting Petitioners, supra note 129, at 15-16, 22.
209. Brief for Abbott Laboratories as Amicus Curiae in Support of Petitioners at 9-13, Linkline, 129 S. Ct. 1109 (No. 07-512), 2008 WL 4154537
210. Brief of Washington Legal Foundation as Amicus Curiae in Support of Petitioners at 5, Linkline, 129 S. Ct. 1109 (No. 07-512), 2008 WL 4154539 (arguing that plaintiffs must show predatory pricing under the test provided by Brooke Group).
211. Brief for United States as Amicus Curiae Supporting Petitioners at 15-18, Linkline, 129 S. Ct. 1109 (No. 07-512), 2008 WL 4125498.
212. Linkline, 129 S. Ct. at 1117. The Court likewise felt obligated to address arguments made by amici that a ruling in favor of AT&T would overrule Alcoa. See id. at 1120 n.3.
213. Id. at 1121-22.
214. Id. at 1122.
215. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007).
216. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911).
217. Id. at 409.
218. Oz Shy, INDUSTRIAL ORGANIZATION: THEORY AND APPLICATIONS 383 (1995).
219. Leegin, 551 U.S. at 881 ("In Dr. Miles. the Court established the rule that it is per se illegal under § 1 of the Sherman Act. to set a minimum price the distributor can charge for the manufacturer's goods.").
220. United States v. Colgate & Co., 250 U.S. 300 (1919).
221. See id. at 307-08 (distinguishing Colgate from Dr. Miles by noting that in Colgate there was no evidence of an agreement to control prices).
222. id. at 307.
223. Robert H. Bork, THE ANTITRUST PARADOX 280-98 (The Free Press 1993) (1978) (arguing that the law prohibiting RPM is "at war with sound antitrust policy" because manufacturers impose RPM not to restrict output and eliminate rivalry but to create distributive efficiency)
224. Richard A. Posner, Antitrust Policy and the Supreme Court: An Analysis of the Restricted Distribution, Horizontal Merger and Potential Competition Decisions, 75 COLUM. L. REV. 282, 283-85 (1975) (explaining that manufacturers may set retail price minimums to encourage dealers to increase point-of-sale services for the product, thus improving the marketing for the manufacturer's product).
225. Cont'l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977).
226. Many commentators have noted the incoherency of treating non-price and price-based vertical restraints differently.
227. Richard A. Posner, The Next Step in the Antitrust Treatment of Restricted Distribution: Per Se Legality, 48 U. CHI. L. REV. 6, 8-14 (1981).
228. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 883-84 (2007).
229. Christopher R. Leslie, Unilaterally-Imposed Tying Arrangements and Antitrust's Concerted Action Requirement, 60 OHIO ST. L.J. 1773, 1797-98 (1999). For a discussion of the inefficiencies of Colgate's formalism
230. Howard P. Marvel, The Resale Price Maintenance Controversy: Beyond the Conventional Wisdom, 63 ANTITRUST L.J. 59, 91 n.76 (1994).
231. Leegin, 551 U.S. at 883.
232. Kenneth G. Elzinga, Ph.D., Ex. A to Leegin's Response to Plaintiff's Motion to Limit Testimony of Kenneth G. Elzinga, Ph.D., PSKS, Inc. v. Leegin Creative Leather Prods., Inc., No. 2:03-CV-107, 2003 WL 24080773 (E.D. Tex. March 18, 2003).
233. Leegin, No. 2:03-CV-107, 2004 WL 5374523, at *5 (E.D. Tex. March 26, 2004).
234. PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 171 Fed. App'x. 464 (5th Cir. 2006), rev'd and remanded, 551 U.S. 877 (2007).
235. Petition for Writ of Certiorari at *5-7, Leegin, 551 U.S. 877 (No. 06-480), 2006 WLN 2849384.
236. Leegin, 551 U.S. at 881-908.
237. Id. at 886 Quoting Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717-723 (1988).
238. One of the earliest proponents of this perspective was Professor Lester G. Telser.
239. Lester G. Tesler, Why Should Manufacturers Want Fair Trade?, 3 J.L. & ECON. 86 (1960).
240. Bork, supra note 177, at 290.
241. Phillip E. Areeda Herbert hovenkamp, ANTITRUST LAW 13-14 (2d ed. 2004).
242. CF. Tesler, supra note 189, at 94 ("[A manufacturer] may refuse to sell his product to any retailer who does not provide the requisite special services.").
243. Posner, supra note 179, at 11 ("[T]he manufacturer's objective in restricting competition among its dealers or distributors is to induce them to provide greater services to the consumer.").
244. Easterbrook, supra note 3, at 148 (explaining how "full service" stores that provide better point-of-sale services like information and support can be undermined by "low service" stores that provide no point-of-sale services when customers visit the full service store to obtain information but ultimately order the product from a low service store).
245. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 913 (2007) (Breyer, J., dissenting) ("The result [of RPM] might be increased competition at the producer level, i.e., greater inter-brand competition.").
246. Leegin, 551 U.S. at 912 (Breyer, J., dissenting) (citing 8 AREEDA & HOVENKAMP, supra note 191, at 40).
247. Areeda Hovenkamp, supra note 191, at 12 (discussing how service and presentation can enhance brand image)
248. Posner, supra note 179, at 19 (questioning the superiority of lower prices to better services). For an example of how provision of sales service can create product value,
249. Marvel, supra note 181, at 63 ("When first introduced, food processors did not have an obvious use. To be marketed effectively, consumers had to be shown the capabilities of food processors, a requirement met through expensive and detailed dealer-provided demonstrations.").
250. Marvel, supra note 181, at 67 (citing works by Professors Comanor and Scherer).
251. Areeda HOVENKAMP, supra note 191, at 42.
252. Pauline M. Ippolito & Thomas R. Overstreet, Resale Price Maintenance: An Economic Assessment of the Federal Trade Commission's Case Against the Corning Glass Works, 39 J.L. & ECON. 285-298 (1996) ("Under this theory, [the manufacturer] would have been induced to use RPM by its dealers, through credible threats of a group boycott of [the manufacturer's] products.").
253. Easterbrook, supra note 3, at 141-43
254. Edward O. Correia, Resale Price Maintenance-Searching for a Policy, 18 J. LEGIS. 187, 230 (1992).
255. Areeda &Hovenkamp, supra note 191, at 88
256. Correia, supra note 201, at 221-24. For example, the federal government's 1926 case against General Electric involved resale price maintenance of light bulbs that was used to police a manufacturer-level cartel. Tesler, supra note 189, at 101.
257. Areeda & Hovenkamp, supra note 191, at 87.
258. Id. at 88-91.
259. Robert Pitofsky, In Defense of Discounters: The No-Frills Case for a Per Se Rule Against Vertical Price Fixing, 71 GEO. L.J. 1487, 1489-90 (1983) ("It is instructive that in the almost three years since the Department of Justice and the Federal Trade Commission took the enforcement position that vertical minimum price fixing is illegal only if unreasonable under a rule of reason, neither agency has found a single instance of vertical price fixing worthy of challenge.").
260. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 889 (2007) (noting the existence of authority supporting both procompetitive and anticompetitive effects of RPM).
261. id. at 886 ("[W]e have expressed reluctance to adopt per se rules. where the economic impact of certain practices is not immediately obvious." (quoting State Oil Co. v. Khan, 522 U.S. 3, 10 (1997))).
262. Part of the problem, of course, is that RPM was per se illegal for a century, so it would naturally be difficult to extrapolate its use from past experience. But unilateral RPM, legal under Colgate, was frequently used and had some of the same procompetitive and anticompetitive aspects as RPM by agreement. Analogy, then, was possible, if imperfect.
263. Leegin, 551 U.S. at 894.
264. Id. at 909-18 (Breyer, J., dissenting).
265. Motion for Leave to File Brief and Brief of Amici Curiae Economists in Support of Petitioner, Leegin, 551 U.S. 877 (No. 06-480), 2006 WL 3244034
266. Brief of Amici Curiae Economists in Support of Petitioner, Leegin, 551 U.S. 877 (No. 06-480), 2007 WL 173681.
267. In an unusual move, Kay's denied consent to all amicus participation in favor of certiorari, forcing amici to appeal to the Court for leave to file. See Motion for Leave to File Brief and Brief of Amici Curiae Economists in Support of Petitioner, supra note 212 ("Petitioner has consented to the filing of this brief, but Respondent has withheld consent, thus necessitating the filing of this motion."). As discussed, the Court's practice is to give its permission as a matter of course, see supra subpart I(A), and it did. Kay's did not bother to oppose the amicus participation at the merits stage of briefing.
268. Leegin, 551 U.S. at 889, 900, 904, 914.
269. Brief of Amici Curiae Economists In Support of Petitioner, supra note 212, at 5-9.
270. Id. at 9.
271. Id. at 13.
272. id. at 16 ("The position absent from the literature is that minimum RPM is most often, much less invariably anticompetitive. Thus, the economics literature provides no support for the application of a per se rule.").
273. Reply Brief for Petitioner at 7 n.3, Leegin, 551 U.S. 877 (No. 06-480), 2007 WL 835316.
274. William S. Comanor and Frederic M. Scherer as Amici Curiae Supporting Neither Party at 4-7, Leegin, 551 U.S. 877 (No. 06-480), 2007 WL 173679.
275. Id. at 3.
276. Perhaps even more problematic was the empirical evidence that was available but that was not presented to the Court by amici or anyone else. For example, Professors Ippolito and Overstreet have empirically examined how a judgment ending Corningware's decades-long use of RPM affected the market for glass cookware and serving ware. In the case study, the professors measured the competitive value of RPM by asking if its discontinuation made the relevant market more or less competitive. Ippolito & Overstreet, supra note 200, at 293-94.
277. Pauline M. Ippolito, Resale Price Maintenance: Empirical Evidence from Litigation, 34 J.L. & ECON. 263 (1991).
278. Brief of the American Petroleum Institute as Amicus Curiae Supporting Petitioner at 11 n.3, Leegin, 551 U.S. 877 (No. 06-280), 2007 WL 160781
279. Brief of CTIA-The Wireless Association as Amicus Curiae in Support of Petitioner at 14-15, Leegin, 551 U.S. 877 (No. 06-280), 2007 WL 160782
280. Brief of Amici Curiae Economists In Support of Petitioner, supra note 212, at 14-15
281. Brief for the United States as Amicus Curiae Supporting Petitioner at 20, Leegin, 551 U.S. 877 (No. 06-280), 2007 WL 173650.
282. Leegin, 551 U.S. at 920 (Breyer, J., dissenting).
283. Ippolito, supra note 224, at 282 tbl.7.
284. Id. at 281.
285. Thomas R. Overstreet, BUREAU OF ECONOMICS STAFF REPORT TO THE FTC-ESALE PRICE MAINTENANCE: ECONOMIC THEORIES AND EMPIRICAL EVIDENCE (1983), available at http://www.ftc.gov/be/ecourpt/233105.pdf.
286. Miller-Tydings Fair Trade Act, ch. 690, 50 Stat. 693 (1937) (repealed 1975).
287. Overstreet, supra note 229, at 112.
288. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877-926 (2007) (Breyer, J., issenting).
289. Brief of PING, Inc. as Amicus Curiae in Support of Petitioner, Leegin, 551 U.S. 877 (No. 06-480), 2007 WL 173680.
290. Id. at 10.
291. Id. at 15.
292. Id. at 11-15.
293. Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae of the National Association of Manufacturers in Support of Petitioner at 6-11, Leegin, 551 U.S. 877 (No. 06-480), 2006 WL 3244035.
294. Leegin, 551 U.S. at 929 (Breyer, J., dissenting).
295. See id. at 894 (arguing that because RPM's anticompetitive effects are uncertain, "these agreements appear ill suited for per se condemnation").
296. Only the liberal Justices dissented: Justices Breyer, Stevens, Souter, and Ginsburg.
297. I am indebted to Harvard Law School Climenko Fellow Michael Burstein for helping me develop this idea.
298. E.g., Crane, supra note 5, at 1211.
299. In contrast, when a court makes an antitrust rule in the first instance, its mistakes may go unchecked.
300. C. Scott Hemphill, An Aggregate Approach to Antitrust: Using New Data and Rulemaking to Preserve Drug Competition, 109 COLUM. L. REV. 629-674 (2009) ("The Court relied, as a reason to deny antitrust liability, upon the mistaken idea that a settlement with one generic firm would spur other generic firms to action, and that these firms would have the large ncentive provided by the exclusivity period. In fact, later filers are ineligible for the exclusivity period.").
301. Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 234 (1st Cir. 1983) (Breyer, J.) ("Rules that seek to embody every economic complexity and qualification may well, through the vagaries of administration, prove counter-productive, undercutting the very economic ends they seek to serve."). Professors Hungar and Koopmans argue that Circuit cases that punish procompetitive behavior are especially likely to be reviewed by the Court. Similarly, the Court worries about the "chilling effect of vague rules." Hungar & Koopmans, supra note 57, at 56
302. CF. Posner, supra note 179, at 15 (arguing that the vagueness of the Rule of Reason "places at considerable hazard any restriction that a manufacturer imposes on its dealers and distributors").
303. And RPM is hardly the only example of conduct, once prohibited by antitrust, that has been made legal by the Court citing pro-competitive grounds. "Despite the fact that the Sherman Act's text has remained unchanged the Court has pulled sudden 'switcheroos' on its rules for monopolization, mergers, and vertical integration." Andrew S. Oldham, Sherman's March (In)to the Sea, 74 TENN. L. REV. 319, 366-67 (2007) (citation omitted).
304. 15 U.S.C. § 15(a) (2006).
305. Contra Easterbrook, supra note 3, at 139 ("[T]here is no ratchet in antitrust. The belated arrival of wisdom is no reason for refusal to learn and change.").
306. Crane, supra note 5, at 1193.
307. See United States v. Topco Assocs., 405 U.S. 596-609 (1972) ("The fact is that courts are of limited utility in examining difficult economic problems."); see also id. at 611 (Blackmun, J., concurring) ("[C]ourts are ill-equipped and ill-situated for" antitrust policy making).
308. Douglas Broder, U.S. ANTITRUST LAW AND ENFORCEMENT 11-12 (2010) (characterizing the George W. Bush Administration's approach to antitrust as a return to "the freemarket, anti-enforcement policies of the Reagan and first Bush [A]dministrations").
309. 15 U.S.C. 46 (2006) (describing the investigatory and reporting capabilities of the FTC).
310. Mark R. Joelson, AN INTERNATIONAL ANTITRUST PRIMER 35 (3d ed. 2006).
311. Antitrust modernization commission, REPORT AND RECOMMENDATIONS 13-14 (2007).
312. Joelson, supra note 252, at 31.
313. U.S. DEP'T OF JUSTICE & FED. TRADE COMM'N, HORIZONTAL MERGER GUIDELINES (2010), available at http://www.justice.gov/atr/public/guidelines/hmg-2010.pdf.
314. Eleanor M. Fox et al., CASES AND MATERIALS ON U.S. ANTITRUST IN GLOBAL CONTEXT 645 (2d ed. 2004) (describing overlapping civil jurisdiction of the Antitrust Division and the FTC).
315. Crane, supra note 5, at 1199.
316. Id. at 1198.
317. 15 U.S.C. § 18a gives the FTC express authority to regulate mergers under the Clayton Act. Conversely, the FTC's authority to enforce the terms of the Sherman Act is not statutorily granted. However, the FTC Act grants the FTC broad powers to regulate "unfair methods of competition" and "unfair or deceptive acts or practices." 15 U.S.C. § 45(a)(1) (2006). By exercising this power, the FTC can enforce the provisions of the Sherman Act. 1 JOHN J. MILES, HEALTH CARE AND ANTITRUST LAW § 6:13 (2010).
318. Joelson, supra note 252, at 26.
319. Custos, supra note 107, at 619 & n.22.
320. Posner, supra note 75, at 766.
321. id. at 768-69.
322. Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 70-74 (1969). The reason for its reluctance is that FTC rules outside of the merger context get little respect from the courts, as evidenced by a recent skirmish between the agency and the Eleventh Circuit over pharmaceutical pay-for-delay settlements. After following procedures that "loosely mimicked the Administrative Procedure Act's requirements for agency rule making," the FTC denounced any "reverse payments" between a branded drug manufacturer and its generic counterpart that exceeded $2 million. The Eleventh Circuit reversed this rule in Schering-Plough Corp. v. FTC, 402 F.3d 1056 (11th Cir. 2005), implying that a regulation passed by the FTC must not clash with the Circuit's own precedent. Although the FTC was neither a party nor an amicus to the earlier case in question, the court considered the agency bound by it and so precluded from promulgating a contrary rule. Crane, supra note 5, at 1200-01.
323. Oldham, supra note 245, at 367-79 (sketching out the history of the nondelegation doctrine and its possible application to the antitrust context).
324. 15 U.S.C. 1 (2006).
325. Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405, 421-43 (2008) (exploring the practice of delegating lawmaking authority to the Judicial Branch and arguing that this practice deserves more scholarly attention).
326. Crane, supra note 5, at 1159-60 (citation omitted).
327. Id. at 1161.
328. Bork, supra note 177
329. Robert H. Bork, Legislative Intent and the Policy of the Sherman Act, 9 J.L. & ECON. 7 (1966).
330. Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 45-46 (2006) (citing "the virtual consensus among economists" that tying arrangements can be economically efficient in supporting a holding that a plaintiff must affirmatively prove that a tying arrangement confers market power to establish an antitrust violation)
331. 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.")
332. Alan Devlin, Antitrust in an Era of Market Failure, 33 HARV. J.L. & PUB. POL'Y 557, 561-62 (2010) (observing that the view that agencies should protect consumers from market concentration was "most prevalent during the Warren Court era, [but] has been resoundingly rejected by U.S. courts for more than thirty years" and concluding that "[l]ong-run efficiency is the exclusive goal of modern competition enforcement")
333. Thomas O. Barnett, Assistant Att'y Gen., U.S. Dep't of Justice, Luncheon Address to the Federalist Society, Washington, D.C. (Feb. 29, 2008), available at http://www.justice.gov/atr/public/speeches/230627.pdf ("[A]n analytical consensus [on the Supreme Court] has emerged. The Court has accepted the focus on economic efficiency.").
334. John B. Kirkwood & Robert H. Lande, The Fundamental Goal of Antitrust: Protecting Consumers, Not Increasing Efficiency, 84 NOTRE DAME L. REV. 191, 196 (2008) (rejecting this view in arguing that "[t]he ultimate objective of [antitrust] laws, in short, is to protect consumers, not to increase overall efficiency").
335. Crane, supra note 5, at 1164 (observing that antitrust enforcement has ceased being an ideological battleground and has since become a "professional, active, and. quietly technocratic and successful enterprise" of legal and economic specialists).