Tuesday, November 16, 2004
If conservative jurists advocate strict constructionism, then why are they so willing to inject contemporary economic thinking into statutory antitrust laws? This is the provocative question raised by Professor Daniel Farber (of Boalt Hall) and Professor Brett McDonnell (of The University of Minnesota Law School) in an article recently posted onto the SSRN web site. The authors point out that some justices seem to toss their principles of statutory construction aside when interpreting the antitrust laws, favoring the application of economic principles of efficiency over an originalist reading of the statutes based on the common law.
While the authors, I think, are correct in arguing that wholesale endorsement of economic efficiency as the normative lynchpin for antitrust laws ignores the original concerns with "bigness" and inequitable distribution of wealth that informed the drafters of the antitrust laws, the drafters of the Sherman Act as well as common law judge-making in the area of unfair competition were informed by economic analysis. It should not be surprising that as the methods of economic analysis evolved so did the methods of reading the texts of the antitrust laws. That point aside, the authors do an excellent job of challenging the thought process of the strict constructionists among us.