Since we have a variety of ideological perspectives represented on this blog (and since I really don't care about the ideological side of this anyway), a question about the political economy of antitrust:
Why did Congress fail to respond with remedial legislation to any or all of the following Supreme Court opinions:
U.S. v. Gen'l Dynamics
Illinois Brick
Brunswick
GTE/Sylvania
Brooke Group
I have my own theories, but would love to see what our bloggers and reader think.
P.S. Ran 3 miles yesterday at 9:00 pace; woke up pain-free and flexible.
Plus Trinko and Twombly!
ReplyDeleteYou have picked cases from the more recent era when antitrust has lost its political salience and is regarded as technical and esoteric. Few on the hill had the expertise or interest to take on a Supreme Court opinion (other than a Metzenbaum or a Kohl) and fewer still saw any political advantage in doing so.
Spencer: This is very close to my own take. I'm currently writing on statutory interpretation and am interested in the determinants of judicial discretion outside the "political core" (that is, outside the range over which the political actors could be expected to agree on their own). I am treating Twombly and Iqbal separately in the article, for what it's worth.
ReplyDeleteWith respect to the pure antitrust opinions I've listed, I am trying to figure out why precisely it was too costly for a politically-aligned-and-antagonistic Congress and Executive to respond to those opinions (I bracket Trinko because there were Republican majorities in both Houses and a Republican
President).
At the same time, I would argue that with the exception of Brooke Group, I haven't so much "picked cases from the more recent era" as picked cases that seem to SIGNAL the arrival of that new era. After all, Topco only predates General Dynamics by two years. If General Dynamics represents the Court's opening salvo, why no return fire?
Of all of these, I tend to find Illinois Brick the strangest. Notwithstanding the Nixon-supported U.S. brief opposing the Gen'l Dynamics merger, I suspect many Democrats found the Court's reasoning in that case fairly persuasive and not worth fighting over. And GTE is somewhat similar, given the outcry over Schwinn, the rather obvious benefits of at least some vertical nonprice restraints, and the perception at the time that plaintiffs could still win Rule of Reason cases. By the time we get to Brooke Group, the recoupment test and the error analysis subtext probably stayed a few Democratic hands.
So too with Brunswick, albeit to a lesser extent. I suspect whatever interest federal lawmakers had was tempered to some degree by the court's observations regarding the risks associated with allowing the wrong sort of plaintiffs to bring suit.
But even a relatively hard-core Chicago-Schooler like me finds Illinois Brick's reasoning inane. And though the passage of state-level "repealers" diminished the need for a federal response over time, I find it fascinating that Congress didn't get its act together (I do see a public choice story there, but then again, I see them everywhere, sort of like Haley Joel Osment and dead people).
I also think there's an "Antitrust and economics couldn't just run off to Vegas and get a no-fault divorce, no matter how much economics changed after the wedding" sort of thing going on. Admittedly a little simplistically, I have long viewed the economics turn of the 1940s-50s as a marriage of convenience. SCP work more or less bolstered the prevailing politics of antitrust, so it was probably expedient (and oh-so-tempting to post-New-Deal technocrats) to put an announcement in the New York Times and conduct a hasty wedding.
Then economics began to change, and antitrust couldn't back out of the marriage.
In any event, thanks for your thoughts!
Paul
P.S. 5 miles, 8:30 pace, no stiffness/soreness. I'm going to try to stick to two days/week of running for the foreseeable future, though.
Glad the running is going better. I may have been too cryptic. I doubt antitrust has had serious political salience since the 1960s if then. At least Richard Hofstadter didn't think so. I don't think either the executive branch or Congress hasn't been willing to spend serious political capital on any of these cases whether they disagreed with the results or not. A little political grand standing sure (baseball antitrust anyone?) but not serious battles. Would be interesting to compare to more hot button issues like labor and see how far court repealers got during exactly the same decades.
ReplyDeleteEmpagran?
ReplyDeleteI wish I had much original to add. I only note that the individual circumstances may overwhelm any larger theme. Legislating over Brooke Group means legislating against big tobacco and decreasing the price of cigarettes. Similar stories can be spun for other of your examples.
There's also the question whether antitrust is sui generis. Changing Sections 1 and 2 is like rewriting Huck Finn to make it correct for a modern audience.
Thanks for all the great comments! Max: that's actually my point in many ways; the initial decision to draft §§ 1&2 that way means that redrafting would be enormously costly -- I call it a "specificity cost" problem in the paper. Spencer -- I think that's true as well; I'm also including opportunity costs in my analysis, and I think the opportunity costs associated with investing in remedial antitrust legislation are simply too high relative to all the other things Congress wants to think about, like steroids in baseball.
ReplyDelete