ANTITRUST ANTITEXTUALISM.

• Author: Crane, Daniel A.

INTRODUCTION

Scholars and judges widely agree that the U.S. antitrust statutes are open-textured, vague, indeterminate, and textually unilluminating. (1) They further agree that little use can be made of the statutes' legislative histories. (2) It follows that the antitrust statutes are best understood as a legislative delegation to the courts to create an evolutionary and dynamic common law of competition. (3) As the Supreme Court explained in its landmark Leegin decision on resale price maintenance, "From the beginning the Court has treated the Sherman Act as a common-law statute.... Just as the common law adapts to modern understanding and greater experience, so too does the Sherman Act's prohibition on 'restraints] of trade' evolve to meet the dynamics of present economic conditions." (4) In other words, the statutory texts disclose little of importance; the action is all in dynamic judicial interpretation.

This view is so widely entrenched in the legal profession's understanding of the antitrust laws--including, it must be admitted, this author's--that it seems presumptuous to claim that the conventional wisdom is wrong, or at least significantly overstated. But it is. While the antitrust statutes may be lacking in some important particulars, they present a readily discernable meaning on many others. As Daniel Farber and Brett McDonnell have argued, "For the conscientious textualist, the statutory texts [of the antitrust laws] have considerably more specific meaning than the conventional wisdom would suggest." (5) And it is not simply the case that the meaning of the statutory texts could be rendered through ordinary methods of statutory interpretation but the courts have failed to see it. Rather, the courts frequently acknowledge that the statutory texts have a plain meaning, and then refuse to follow it.

But it gets worse. The courts have not merely abandoned statutory textualism or other modes of faithful interpretation out of a commitment to a dynamic common-law process. Rather, they have departed from text and original meaning in one consistent direction--toward reading down the antitrust statutes in favor of big business. As detailed in this Article, this unilateral process began almost immediately upon the promulgation of the Sherman Act and continues to this day. In brief: within their first decade of antitrust jurisprudence, the courts read an atextual rule of reason into section 1 of the Sherman Act to transform an absolute prohibition on agreements restraining trade into a flexible standard often invoked to bless large business combinations; after Congress passed two reform statutes in 1914, the courts incrementally read much of the textual distinctiveness out of the statutes to lessen their anticorporate bite; the courts have read the 1936 Robin-son-Patman Act almost out of existence; and the Celler-Kefauver Amendments of 1950, faithfully followed in the years immediately after their promulgation, have been watered down to textually unrecognizable levels by judicial interpretation and agency practice. It is no exaggeration to say that not one of the principal substantive antitrust statutes has been consistently interpreted by the courts in a way faithful to its text or legislative intent, and that the arc of antitrust antitexualism has bent always in favor of capital.

Unlike in many debates over statutory interpretation, the issue in antitrust is not a contest between strict textualism and purposivism, including resort to legislative history. (6) This Article uses "antitextualism" as a shorthand for the phenomenon of ignoring any bona fide construction of what a statute means, whether in the plain meaning of its words, linguistic or substantive interpretive canons, legislative history, or other ordinary markers of legislative meaning. Uninterested in these methods, the courts have treated the antitrust laws as a virtually unbounded delegation of common-law powers when, in important ways, the statutes quite clearly say something other than that.

Inquiring into the nature and implications of antitrust antitextualism is particularly salient at the present when, for the first time in a generation, there is widespread dissatisfaction with antitrust enforcement and impetus for potential reform legislation. (7) As was true at each of the prior moments of reformist sentiment, the call is for statutory reforms to curb the power of big business. (8) We have seen this play before, and also its sequel. In the play, Congress announces that the antitrust laws are too weak and that reforms are necessary to protect the nation from the power of big capital. In the sequel, the courts (often abetted by the antitrust agencies and other antitrust elites) read down the statutes to accomplish less than their texts suggest or Congress meant. Will anything be different this time around, or are the legislative reforms currently on the table predestined to a similar fate?

To begin informing an answer to that question, this Article undertakes to diagnose and analyze the longitudinal phenomenon of antitrust antitextualism. Part I sets the stage by contextualizing antitrust law within broader jurisprudential conceptions of statutory regimes, statutory interpretation, and legislative-judicial dynamics. More specifically, it presents the conventional understanding of the Sherman Act as a "super-statute" delegating broad common-law powers to the courts, thus removing antitrust law from usual controversies over statutory interpretation methodologies. (9) It then establishes that, if the conventional wisdom is wrong and the antitrust statutes have determinate meanings that the courts are consistently ignoring in favor of big capital, the most obvious inference is that the courts have an ideological bias at odds with congressional purpose. Part I concludes by establishing a framework for assessing whether antitrust antitexualism generally represents a conservative judicial bias against the will of a more progressive Congress.

Part II subjects the historical record of antitrust antitextualism to the analytical framework described in Part I. It presents the consistent pattern of judicial disregard of the antitrust statutes' text and purpose across all five of the principal substantive antitrust statutes--the Sherman Act of 1890, the FTC and Clayton Acts of 1914, the Robinson-Patman Act of 1936, and the Celler-Kefauver Act of 1950, and shows that the pattern of judicial disregard has a unilateral direction--toward softening the blow of the antitrust laws on big business. However, Part II also shows that the progressive Congress/conservative courts hypothesis fails to capture the burden of the historical record. In particular, the judges responsible for reading down the antitrust statutes were not generally conservative by conventional measures, Congress has not shown much interest in overriding the judicial recasting of the statutes, and the courts have not undertaken to constitutionalize their holdings in order to prevent congressional overrides, even though they had many occasions to do so. Something other than ideological conflict between the legislative and judicial branches must be behind the phenomenon.

Part III offers a counterhypothesis--that the antitrust laws reside in perennial tension between two fundamental impulses of the American political psyche: the romantic and idealistic attachment to smallness over bigness, and the pragmatic and often grudging realization that large-scale organization may be necessary to achieve economic efficiency. Congress expresses populist idealism through legislative pronouncements reining in big business, but then implicitly acquiesces as the courts (often in conjunction with the executive branch) read down the statutes to strike a balance between the aspirational and pragmatic impulses. For better or for worse, this is the way things have worked for 130 years. Part III concludes by considering the implications of the idealistic Congress/pragmatic courts thesis for future legislative reforms, the dynamism of the antitrust system, and jurisprudential understanding of legislative/judicial dynamics more generally.

1. ANTITRUST AS COMMON LAW

   1. The Sherman Act as Indeterminate Super-Statute

      The jurisprudence and theory of statutory interpretation is fraught with conflict over interpretive modes and ideological bias. (10) Textualists insist on adherence to the plain or grammatical meaning of statutory language, informed by linguistic canons of interpretation, while purposivists insist on a wider set of interpretive tools, including resort to legislative history. (11) Scholars debate whether judges tend to follow their interpretative commitments genuinely, or whether they instead follow their political or ideological commitments under cover of ostensibly neutral interpretive principles. (12) Scholars also analyze statutory interpretation as an ideologically driven exchange between Congress and the courts, with swings in congressional ideology affecting interpretive ideology on the courts. (13)

      Antitrust law has largely been immune to such analysis as a mode of contestable statutory interpretation because, across the ideological spectrum, judges and scholars have assumed that the antitrust statutes do not behave like ordinary statutes, with discernable, concrete mandates or meanings. (14) Instead, antitrust has been assumed to operate as a broad delegation from Congress to the courts to create a common law of competition within the institutional constraints specified in the statute. (15) In a leading theoretical account, William Eskridge and John Ferejohn included the Sherman Act in their roster of "super-statutes," which

      (1) seek[ ] to establish a new normative or institutional framework for state policy and (2) over time does "stick" in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law--including an...