Measuring the Antitrust Revolution

• Author: Maia Crook,D. Daniel Sokol,Sara Bensley
• Published date: 01 December 2020
• Date: 01 December 2020
• DOI: http://doi.org/10.1177/0003603X20950230

Article

Measuring the

Antitrust Revolution

D. Daniel Sokol*,**, Sara Bensley*, and Maia Crook***

Abstract

Although antitrust always evolved with the economics of its time, economic analysis was not central to

the antitrust enterprise until Continental T.V. Inc. v. GTE Sylvania. In doing so, the Court abandoned the

multiple goals of the prior era to embrace a singular economic goal. With a singular goal, antitrust had

become revolutionary. How to measure the antitrust revolution has been difficult. In this article, we

focus on published case law, which provides a broad set of observations that includes government

enforcement actions and private antitrust suits. We use the Caselaw Access Project database and its

associated “Historical Trends” tool to track the usage of certain words and phrases in judicial opinions.

This article is the first to measure antitrust terms in court cases that combine big data with data

visualization techniques to better understand, based on the usage of common antitrust terms, the

impact economics has had on decided cases.

Keywords

antitrust, competition law, data visualization, antitrust economics

I. Introduction

Although antitrust always evolved with the economics of its time,

1

economic analysis was not central

to the antitrust enterprise until the Supreme Court signaled a change in its groundbreaking decision

Continental T.V. Inc. v. GTE Sylvania.

2

In Sylvania, the Court shifted from per se illegality of vertical

territorial restrictions to a rule of reason approach.

3

In doing so, the Court abandoned the multiple

goals of the prior era to embrace a singular economic goal.

* University of Florida Levin College of Law, Gainesville, FL, USA

** White & Case, Miami, FL and Washington, DC, USA

*** University of Florida, Gainesville, FL, USA

Corresponding Author:

D. Daniel Sokol, University of Florida Levin College of Law, Box #117625, Gainesville, FL 32611, USA.

Email: sokold@law.ufl.edu

1. HERBERT HOVENKAMP,ENTERPRISE AND AMERICAN LAW, 1836–1937 (1991).

2. Continental T.V. Inc. v. GTE Sylvania, 433 U.S. 36 (1977).

3. In Sylvania, the Court overturned precedent because of changes in the economic learning. See id. at 48–49 (“Although

Schwinn is supported by the principle of stare decisis, we are convinced that the need for clarification of the law in this area

The Antitrust Bulletin

2020, Vol. 65(4) 499–514

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DOI: 10.1177/0003603X20950230

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With a singular goal, antitrust had become revolutionary. Because of the singular goal, antitrust

became easier to administer. Gone were the days in which issues of fairness, with its implicit inde-

terminacy, required trade-offs with efficiency.

4

The antitrust revolution meant that antitrust’s singular

concern would be based on the application of economic analysis and economic evidence to legal

questions.

The importance of administrability to a complex set of doctrines which marry multiple institutions

cannot be overstated. Yet antitrust’s revolution did exactly that.

5

Antitrust became synonymous with

economic analysis and has remained that way for a generation.

Although there are multiple institutions in antitrust—Congress, the two antitrust agencies, state

enforcers, and private plaintiffs—it is the courts that play the most important role in the evolution of

antitrust. The language of the Sherman Act is broad. Multiple goals of the Sherman Act emerged both

from the legislative history and case law.

6

As with many statutes with multiple goals, sometimes these

goals were in conflict. Although there are federal and state enforcers of antitrust, the courts have taken

the primary role of antitrust enforcement through their decisions. In this sense, antitrust has become

evolutionary, like traditional common law.

7

But unlike any other substantive field of law, the courts’

antitrust decisions marry case law development to shifts in economic analysis.

The revolution in antitrust in the courts, starting with Sylvania, created a path-dependent outcome

toward the embrace of economic effects across doctrines. A number of doctrines that had been per se

illegal shifted to a rule of reason that would weigh procompetitive justifications for the business

behavior against anticompetitive effects.

8

To put this change in perspective, Herb Hovenkamp has

written:

The half-century period that ended in the late 1970s had seen many antitrust infidelities, mainly from

expansion that today seems unprincipled, given that injury to competition was so often absent ...Today,

justifies reconsideration.... Schwinn has been the subject of continuing controversy and confusion .... In our view, the

experience of the past 10 years should be brought to bear on this subject of considerable commercial significance.”).

4. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 344 (1962) (“It is competition, not competitors, which the Act

protects. But we cannot fail to recognize Congress’ desire to promote competition through the protection of viable, small,

locally owned business. Congress appreciated that occasional higher costs and prices might result from the maintenance of

fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give

effect to that decision.”); United States v. Aluminum Co. of Am., 148 F.2d 416, 428 (2d Cir. 1945) (“[G]reat industrial

consolidations are inherently undesirable, regardless of their economic results.”). Fed. Trade Comm’n v. Procter & Gamble

Co., 386 U.S. 568, 580 (1967) (“Possible economies cannot be used as a defense to illegality. Congress was aware that some

mergers which lessen competition may also result in economies but it struck the balance in favor of protecting competition.”).

5. HERBERT HOVENKAMP,THE ANTITRUST ENTERPRISE:PRINCIPLE AND EXECUTION 7–10 (2005).

6. Robert H. Land e, Wealth Transfers as the Original and Primary Con cern for Antitrust: The Efficiency Interpre tation

Challenged,34HASTINGS L.J. 65 (1982); Thomas J. DiLorenzo & Jack C. High, Antitrust and Competition, Historically

Considered,26E

CON.INQUIRY 423 (1988); Thomas W. Hazlett, The Legislative History of the Sherman Act Re-examined,30

ECON.INQUIRY 263 (1992); Thomas J. DiLorenzo, The Origins of Antitrust: An Interest-Group Perspective,5INT’LREV.L.&

ECON. 73 (1985); See RICHARD HOFSTADTER,What Happened to the Antitrust Movement?,inTHEBUSINESS ESTABLISHMENT 113

(Earl. F. Cheit ed., 1964); Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition,

71 ANTITRUST L.J. 1 (2003); WILLIAM LETWIN,LAW AND ECONOMIC POLICY IN AMERICA:THE EVOLUTION OF THE SHERMAN

ANTITRUST ACT (1981); HANS B. THORELLI,THE FEDERAL ANTITRUST POLICY:ORIGINATION OF AN AMERICAN TRADITION (1955).

7. D. Daniel Sokol, Rethinking the Efficiency of Common Law,95NOTRE DAME L. REV. 795, 807 (2019); William F. Baxter,

Separation of Powers, Prosecutorial Discretion, and the “Common Law” Nature of Antitrust Law,60T

EX.L.REV. 661, 666

(1982). This articulation in antitrust is long-standing. See Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359–60

(1933) (“As a charter of [economic] freedom, the [Sherman] Act has a generality and adaptability comparable to that found to

be desirable in constitutional provisions. It does not go into detailed definitions which might either work injury to legitimate

enterprise or through particularization defeat its purposes by providing loopholes for escape.”).

8. William E. Kovacic & Carl Shapiro, Antitrust Policy: A Century of Economic and Legal Thinking,14J.E

CON.PERSP.43

(2000).

500 The Antitrust Bulletin 65(4)