Tuesday, August 18, 2009
Posted by D. Daniel Sokol
Lee Greenfield (Wilmer) and Daniel Matheson (Wilmer) have a good short article on Rules Versus Standards and the Antitrust Jurisprudence of Justice Breyer.
ABSTRACT: Stephen Breyer’s antitrust opinions have consistently focused on searching for the right balance between clear, predictable predictable rules and detailed, fact-specific analysis under more open-ended standards. Indeed, of all Justice Breyer’s contributions to the development of modern antitrust law, both during his tenure on the First Circuit and on the Supreme Court, perhaps none has been more valuable. Breyer has emphasized that antitrust is a system of laws that must be administered by fallible judges and juries and followed by businesses in real time. He has favored bright-line rules and safe harbors when, in his view, the benefits of exhaustive analysis using all of the economic and other tools available in modern antitrust cases do not justify the costs. This focus has sometimes led to prodefendant opinions shielding conduct from intensive antitrust inquiry; but, in other cases, to obtain the benefits of predictable rules, Breyer has been willing quickly to condemn conduct that could conceivably be procompetitive. The principles Justice Breyer has articulated have served as a conceptual blueprint for several landmark Supreme Court antitrust decisions. And, as the sharp debate over the Department of Justice’s now-withdrawn Section 2 Report well illustrates, these principles promise to remain central to the debate as the courts and agencies deal with some of the most controversial antitrust issues of our times.