Climbing the antitrust staircase

• DOI: 10.1177/0003603X8603100204
• Date: 01 June 1986
• Published date: 01 June 1986
• Author: Ernest Gellhorn
• Subject Matter: Article

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.