The Roberts Court and the Limits of Antitrust

Abstract

IntroductionOne often hears two things about Roberts Court's treatment of antitrust. first is that this Court has displayed a greater interest in antitrust than its direct predecessor.1 That seems accurate. Whereas Rehnquist Court showed little enthusiasm for antitrust cases in its later years, Roberts Court issued seven antitrust decisions in its first two years alone.2 Some have attributed trend toward more antitrust cases, and more business cases generally, to Chief Justice Roberts's years in private practice, during which he confronted a number of business and antitrust issues.3 Whatever its cause, there does seem to be an uptick in enthusiasm for antitrust cases on current Supreme Court.The second oft-heard observation about Roberts Court's antitrust decisions is that they betray a significant pro-business (or, pejoratively, anti-consumer) shift on Court. Not surprisingly, left-leaning advocacy groups have repeatedly sounded this refrain.4 But even respected academics and leaders of antitrust bar have construed Roberts Court's antitrust decisions as being radically and reflexively probusiness. 5 For example, noted legal scholar Erwin Chemerinsky recently dubbed Roberts Court the most pro-business Supreme Court there has been since mid-1930s and has characterized Court's antitrust decisions as favoring business over consumers.6 Chemerinsky, by his own admission, is not an antitrust expert.7 meme he recites has nevertheless been embraced by others who do have substantial antitrust expertise. For example, William Kolasky, a former Deputy Assistant Attorney General in Antitrust Division of U.S. Department of Justice and an associate editor of American Bar Association's Antitrust magazine, made following observations in 2008:Our Supreme Court, especially under leadership of Chief Justice John Roberts, seems equally intent on cutting back on private enforcement. It has been more than fifteen years since Supreme Court last decided an antitrust case in favor of a plaintiff. Over this fifteen-year period, plaintiffs have gone 0- for-16, with not a single plaintiff winning an antitrust case in Supreme Court since first George Bush was president. This record led Antitrust to ask in its last issue whether Supreme Court's recent antitrust decisions represent The End of Antitrust as We Know It?8The central claim of this Article is that second common assertion about Roberts Court's antitrust jurisprudence-that it is probusiness and anti-consumer and represents a radical departure from past-is wrong and reflects a misunderstanding of antitrust enterprise. As a body of law regulating business conduct for benefit of antitrust is inherently limited. Once one accounts for limits of antitrust, rulings of Roberts Court, rather than favoring business over consumers, seem calculated to maximize antitrust's effectiveness to ultimate benefit of consumers. Specifically, Roberts Court's antitrust cases embrace a decision-theoretic approach that seeks to minimize sum of decision and error costs that inevitably result from antitrust adjudication.This Article proceeds as follows: Part I sets forth limits of antitrust and explains how a decision-theoretic approach, in light of these inherent limits, ultimately benefits consumers by maximizing overall effectiveness of antitrust enterprise.9 Part II then discusses Roberts Court's antitrust decisions, demonstrating how each coheres with a decision-theoretic approach.10 Part III looks to future and predicts how Roberts Court, harnessing insights of decision theory, will resolve several antitrust issues that are likely to come before it.11I. Limits of Antitrust and Need for a Decision- Theoretic ApproachWhen it comes to ensuring that consumers have access to low prices, high quality goods, and product variety, there is no better regulator than competition. …