Wednesday, February 8, 2023
The antitrust laws are fully stated in two statutes that seem absurdly brief in relation to the work they do. Their brevity in relation to coverage has led to three phenomena. First is the tendency of courts to use the statutory text as no more than a starting point, treating it as a general principle, or “Magna Carta,” of free enterprise, and sometimes ignoring the statutory language altogether. Second, courts have responded to the statutory brevity with judicial development of numerous rules not mentioned in the statutory texts. The third phenomenon is a kind of expansionism, or belief that the antitrust laws can be used to control the entire world, or at least the entire economic world.
This article considers what antitrust policy would look like if an antitrust “textualist” actually relied on the antitrust statutes themselves to control all important issues of interpretation. The language of the antitrust laws, although brief, actually says a great deal more than is commonly acknowledged. Further, the Sherman and Clayton Acts are statutes after all. They should provide the first place to look to for guidance on enforcement policy. How much different would antitrust look if we centered policy on the statutory language, using only generally accepted forensic tools and recognized canons of statutory interpretation to understand it? Among the areas where the statutory language provides considerable direction are the goals of the antitrust laws; market power and market delineation requirements; the probabilistic effects requirement of the Clayton Act, standing and the indirect purchaser rule, conspiratorial capacity and antitrust personhood, and extraterritorial effects.