Taming Sherman's Wilderness

Abstract

There is little doubt that Congress intended economic regulation under the Sherman Act to develop with flexibility — case-by-case, claim-by-claim. Yet, given the unusual level of interpretation the Act requires, the effort to supply the content of its sweeping prohibitions more closely resembles policy formulation than statutory interpretation. The vagueness of the Sherman Act’s text needs a remedy that a century’s worth of judicial gloss has failed to provide. The modernization of our economy demands a modernized antitrust regime, and reliance on the customary techniques of judicial reasoning may now make less sense. The judiciary is certainly apt to reason by way of analogy and precedent, but the regulatory task increasingly demands enlightened, data-driven analysis. The combination of widespread declines in competition, disagreements over fundamental antitrust philosophies, and fresh swells of public and political fervor demand that Congress do what it did in 1890: respond by updating antitrust’s policy making approach. An additional step toward taming the the economic wilds — toward optimizing clarity, predictability, and outcomes — might be to shift the task of interpreting the Sherman Act to an antitrust agency. Yet, even while an agency solution may be viable, there are some drawbacks. Namely, there are constitutional objections to which the Sherman Act may be vulnerable — under separation of powers principles, such as the nondelegation doctrine, as well as void for vagueness principles — especially if an agency delegation were not accompanied by some level of additional textual clarity.