Wednesday, October 28, 2009
Posted by D. Daniel Sokol
Dan Crane (Michigan Law) has a nice piece on linkLine's Institutional Suspicions.
ABSTRACT: The Supreme Court's recent decision in Pacific Bell v. linkLine, rejecting antitrust liability for price squeezes by integrated dominant firms, is the latest in a line of cases in which the two schools of antitrust thinking represented on the Court - the Chicago and Harvard Schools - have lined up in rejecting liability in large part due to deep suspicion about the institutional players in the antitrust system. Both schools distrust juries, generalist trial judges, plaintiff's lawyers, and the systemic effects of treble damages. Although the two schools diverge in their attitude toward other institutions - the Chicago School distrusts regulators which the Harvard School trusts and the Harvard School distrusts markets which the Chicago School trusts - in most cases the two schools combine to produce unanimous or nearly unanimous wins for defendants. Proponents of enhanced antitrust enforcement who chafe at antitrust defendants’ 15-0 run in the Supreme Court are unlikely to see different results until they seriously engage the institutionalist concerns that motivate the Court.