Wednesday, April 13, 2005
Professor David Shores of Wake Forest Law School has published an interesting paper on SSRN entitled Economic Formalism in Antitrust Decisionmaking. He crriticizes formal economic thinking in antitrust jurisprudence and draws a parallel with the formalism of the Lochner opinion.
One mystery from the Lochner era and the early years of antitrust jurisprudence is Justice Peckham, who authored Lochner and also wrote the opinion in Trans Missouri Freight, an early Sherman Act opinion that made all agreements among competitors anti-competitive. Although both Lochner and Trans Missouri Freight illustrate the dangers of formalism, it is worth noting that Peckham, who extolled the liberty of contract in Lochner, readily struck down a contract a few years earlier in Trans Missouri Freight, characterizing it as the type of industry self-regulation that the Sherman Act forbid.