Attitudinal Discretion and the Prospects for Reinvigorating Antitrust: A Look at the New Federal Rules

• Date: 01 March 1994
• DOI: 10.1177/0003603X9403900102
• Published date: 01 March 1994
• Subject Matter: Article

The Antitrust Bulletin/Spring 1994

Attitudinal discretion and the

prospects for reinvigorating

antitrust: a

look

at the

new federal rules

BY

ANDREW

I.

GAVIL

*

I. Introduction

27

Antitrust lives and dies by the sword

of

litigation. Although

antitrust

can and

has

altered

its

course

through

legislative

*Associate Professor of Law, Howard University School of Law.

AUTHOR'S NOTE: This article was prepared for

An

Antitrust Revival?

Constructing Policies and Goals for a Revitalized Economy, a conference

jointly sponsored by The Antitrust Bulletin

and

the St. Mary's University

School

of

Law, held in San Antonio, Texas, on May 21, 1993. It was orig-

inally delivered under the title "Using Antitrust as a Measure

of

Civil

Reform's Success: Predatory Litigation

and

the

New

Federal

Rules."

The author thanks William J. Curran III and Professor Robert H. Lande

for inviting him to participate in the Conference, and the St. Mary's Uni-

versity School

of

Law for its financial support.

The author would like to thank Ms. Laura S. Carnell, Howard Univer-

sity School

of

Law and Mr.

Jack

E. Hairston, Jr., Howard University

School

of

Law for their research assistance, and the Howard University

School

of

Law for its financial support

of

this article. He would also like

to thank Professors Robert H. Lande, Susan M. Gilles and Thomas D.

Morgan for their very helpful comments on an earlier version

of

it.

/{))

1994 by Federal Legal Publications, Inc.

28 The antitrust bulletin

change, the "constitutional" Sherman Act,l with its common law

roots," was by design crafted to evolve through case law develop-

ment.

It

is no accident, therefore, that the foundation doctrines

and concepts

of

antitrust that are now accepted as well estab-

lished-the

"rule

of

reason,"

the

"per

se

rule,"

distinctions

between

horizontal

and vertical arrangements, interbrand and

intrabrand competitive effects, and price and nonprice restraints,

as well as market definition and market power analysis, to sample

just a

few-all

are products

of

case law development. The rela-

tionship of economic learning to antitrust legal doctrine too is a

function

of

the day-to-day adversarial confrontation that takes

place in our federal courts. This pivotal place of litigation in the

development

of

antitrust, however, has not translated into a corre-

sponding focus in the antitrust literature on the litigative process.

"Process," and its influence on antitrust, largely has been ignored

by commentators and antitrust practitioners alike.'

1In its often quoted, early description of the Act, the Supreme

Court described its breadth and flexibility as "comparable to that found to

be desirable in constitutional provisions." Appalachian Coals, Inc. v.

United States, 288 U.S. 344,

359-60

(1933). For a critique of that

unbounded flexibility and a suggestion for a more structured and finite

approach to the interpretation of section 1 of the Act, see Thomas C.

Arthur, Farewell to the Sea

of

Doubt: Jettisoning the Constitutional

Sherman Act, 74

CAL.

L.

REV.

263 (1986).

2See, e.g., National Soc'y of Professional Eng'rs v. United States,

435 U.S. 679, 688 (1978). See also Arthur, supra note 1, at 277-84;

William H. Page,

Ideological

Conflict

and

the

Origins

of

Antitrust

Policy, 66 TuL. L.

REV.

1,

35-37

(1991); Donald Dewey, The Common

Law Background

of

Antitrust Policy, 41

VA.

L.

REv.

759 (1955); William

Letwin, The English Common Law Concerning Monopolies, 21 U. Cm. L.

REV.

355 (1954).

3Two notable exceptions include the substantial debate that took

place in the wake of the Supreme Court's 1986 Matsushita decision, and

the "Monsanto-Sharp" bill, that would restore the burdens of proof in

resale maintenance cases to their pre-1984 status. For a sampling of the

commentary on Matsushita that focuses on its procedural ramifications,

see Symposium:

Antitrust,

Summary

Judgment

and

Matsushita,

36

ANTITRUST

BULL.

271 (1991); Note, Predatory Pricing Conspiracies After

Matsushita Industrial Co. v. Zenith Radio Corp.: Can an Antitrust Plain-