Wednesday, November 18, 2015
Barak Orbach, University of Arizona has written about Antitrust Stare Decisis.
ABSTRACT: The concept of stare decisis, the idea that the Supreme Court follows its own precedents, presumes that settled law offers advantages that may outweigh the costs of its imprecision. Explaining its antitrust jurisprudence, the Supreme Court occasionally argues that stare decisis has “less-than-usual force in cases involving the Sherman Act.” This narrative, however, doesn’t describe correctly the law. The concept of stare decisis has produced specific applications in antitrust law that follow five general patterns: the traditional, post-traditional, methodological, anomalous, and neglected antitrust stare decisis. (1) The “traditional pattern” consists of the old per se illegality rules, which the Court was reluctant to overturn on stare decisis grounds. (2) The “post-traditional pattern” emerged in the late 1970s as a judicial policy that intended to update antitrust law by narrowing and even overruling precedents. The Court sometimes presents this pattern as its general antitrust stare decisis jurisprudence. (3) The “methodological pattern” is the practice of relying on judicial statements to structure antitrust analysis. (4) The “anomalous pattern” is comprised of antitrust doctrines, such as the baseball exemption, that were created because of peculiar beliefs and have survived because of stare decisis even though antitrust lawyers and economists generally consider them misguided. (5) The “neglected pattern” refers to the underdevelopment of antitrust stare decisis resulting from the Court’s limited interest in antitrust law. This paper explains the patterns of antitrust stare decisis and the relationships among them.