Monday, November 10, 2008
Posted by D. Daniel Sokol
the past thirty plus years Justice Stevens has played a special role in
the jurisprudence of antitrust. He came to the Supreme Court after a
successful career as an antitrust litigator, scholar, law teacher, and
federal appellate judge. Justice Stevens applied the special insights
this background provided to articulate a unique voice in shaping
antitrust. While much of the antitrust debate since World War II has
concerned the proper legal standard for assessing the competitive
impact of agreements under the antitrust laws, Justice Stevens has
focused much of his analytical work for the Court on a more
sophisticated, but no less important, question - how should a court
actually determine whether an agreement unreasonably restricts
competition in violation of the antitrust laws. In antitrust terms, the
question for Stevens was not so much whether the per se rule or the
rule of reason applied in a particular case, but what does the rule of
reason actually mean and how should it be applied.
In this article, I examine the distinctive voice Justice Stevens brought to antitrust, some of the personal and professional influences that created this voice; and the impact of Justice Stevens on the antitrust jurisprudence of the Supreme Court in defining the rule of reason and its application. I argue that Stevens, more than any Justice, helped define the rule of reason as a single unitary continuum in analyzing agreements under Section 1 of the Sherman Act and further defined what counted as potential legitimate justifications under the rule.
Part I lays out Justice Stevens's student and early professional career and the influence that Professor James Rahl of Northwestern University School of Law had on Justice Stevens and his antitrust philosophy. Part II analyzes the litigation practice, scholarly writing, and limited antitrust appellate opinions of then Judge Stevens for further clues as to his evolving antitrust philosophy. Part III examines the numerous Supreme Court opinions authored by Justice Stevens which analyze the critical issue of what the rule of reason actually means when it applies in a case. Finally, I conclude that Justice Stevens' most important contribution in antitrust was to redefine the rule of reason from an empty analytical box in which defendants automatically prevailed into the core tool of modern antitrust law in which courts conduct a more meaningful analysis of the competitive impact of agreements.