The New Madison Approach: Keeping Antitrust in Its Lane

In 2018 Assistant Attorney General Makan Delrahim proclaimed the New Madison Approach (“NMA”) to the interface between antitrust and intellectual property. He specifically addressed disputes involving standard essential patents subject to commitments to license on fair, reasonable, and non-discriminatory terms. After the Ninth Circuit’s Qualcomm decision, which implicitly embraced the NMA, controversy continues to rage over the role of antitrust in these disputes. This paper argues that th