Climbing the antitrust staircase

DOI10.1177/0003603X8603100204
Date01 June 1986
Published date01 June 1986
Subject MatterArticle
The Antitrust Bulletin/Summer 1986
Climbing the antitrust staircase
BY ERNEST GELLHORN*
Introduction
341
In the space of about 15 years, antitrust
has
moved from a time
when the guiding principle seemed to be
that
the government
always wins' to a situation where critics frequently charge
that
the
government never sues.' While
both
comments
are obviously
overstatements, there is more than akernel
of
truth
in each. The
question arises, therefore, whether recent differences in the direc-
tion
of
antitrust policy are solely ones
of
philosophy and political
power. Are the antitrust policies and
judgments
under President
Reagan, as compared with antitrust rulings while Jimmy Carter
or Gerald Ford was president, explained simply by the fact that
we now have a conservative, business-oriented regime in power
unwilling to enforce antitrust with
the
same vigor as prior
administrations? Or is something more significant taking place?
I believe that a careful examination
of
antitrust trends and
current practices reveals substantial shifts in
the
center
of
anti-
trust analysis and economic understanding.
And
this redirection
is likely to continue regardless
of
which
party
controls the
*Attorney, Jones, Day, Reavis &
Pogue;
formerly,
Dean
and
Galen J. Roush Professor
of
Law, Case Western Reserve University.
1United States v, Von's Grocery ce., 384
U.S.
270, 301 (1966)
(Stewart,
J.)
("The sole consistency
that
I
can
find is
that
in litigation
under Section 7, the Government always
wins").
2See Seiberling, Congress Makes the Laws: The Executive Should
Enforce Them, 53
ANTITRUST
L.J. 175 (1984).
e1986by Federal LegalPublications, Inc.
342 : The antitrust bulletin
executive branch. This conclusion is supported by the fact that
many recent changes have been confirmed by courts even though
only about one-third of all federal judges have been appointed by
Mr. Reagan, including only one member of the Supreme Court.
It
seems, in other words, that something more than naked power is
operating to refocus antitrust enforcement.
In determining what other, perhaps more rational factors are
deciding the course of antitrust, I propose first to examine earlier
shifts in antitrust doctrine and then to explore some
of
the forces
that have forged these changes. They are, I believe, instructive in
seeking an understanding of the likely future direction of anti-
trust. This is not to suggest, however, that politics and normative
values should be discounted. Rather, the thesis of this article is
that the future of antitrust is profoundly affected by developing
insights into market operations as well as by the state of the
economy and the political process. Each has a place and each
plays a role in the shaping of antitrust
policy.
Four phases
of
antitrust
The primary operative terms of the major antitrust statutes
are extraordinarily brief yet equally vague. The Sherman Act
simply prohibits "every contract . . . in restraint
of
trade" and
makes "every person who shall monopolize" subject to liability,'
The Clayton Act completes this picture by condemning mergers
whose effect "may be substantially to lessen competition.:" These
broad, Constitution-like delegations of interpretative authority to
the courts have led to a kaleidoscope of reactions over the years,
including confusion, hostility, expansive application, and skepti-
cism.
Contractual (1890-1910)
The formative years of antitrust, from the adoption of the
Sherman Act in 1890 until the establishment of the "Rule of
3IS U.S.C. §§ 1-2.
415 U.S.C. §17.

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