Justice Breyer, Professor Kahn, and Antitrust Enforcement in Regulated Industries

Abstract

In his scholarly writings before joining the Supreme Court, Justice Breyer was skeptical of regulation and supportive of antitrust as a preferable alternative. In this regard Breyer was in express agreement with Professor Alfred Kahn, who championed airline and telecommunications deregulation while advocating antitrust enforcement to promote competition in those industries. It might therefore appear unexpected that Justice Breyer would write the opinion in one case, Credit Suisse v. Billing, and would side with the decision in another, Verizon v. Trinko, to limit antitrust enforcement in regulated industries. This Essay examines the reasoning of Credit Suisse and Trinko. Then, focusing on Breyer’s 1987 California Law Review article and the accompanying commentary by Professor Kahn, it explains why those cases are more predictable than paradoxical in light of Justice Breyer’s earlier scholarly work.