Posted by Social Science Research Network
Taming Sherman’s Wilderness
By Derrian Smith (Indiana University Maurer School of Law)
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.
Featured News
Judge Allows FTC Antitrust Case Against Amazon to Move Forward
Oct 1, 2024 by
CPI
SAP Leader Urges Caution on EU AI Rules, Warns of Competitive Disadvantage
Oct 1, 2024 by
CPI
Colorado’s Grocery Workers Unite to Oppose $24.6 Billion Supermarket Merge
Oct 1, 2024 by
CPI
Canada’s Competition Bureau Warns Businesses of Tougher Enforcement
Oct 1, 2024 by
CPI
Top Antitrust Lawyers Launch New Boutique Firm
Oct 1, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Refusal to Deal
Sep 27, 2024 by
CPI
Antitrust’s Refusal-to-Deal Doctrine: The Emperor Has No Clothes
Sep 27, 2024 by
Erik Hovenkamp
Why All Antitrust Claims are Refusal to Deal Claims and What that Means for Policy
Sep 27, 2024 by
Ramsi Woodcock
The Aspen Misadventure
Sep 27, 2024 by
Roger Blair & Holly P. Stidham
Refusal to Deal in Antitrust Law: Evolving Jurisprudence and Business Justifications in the Align Technology Case
Sep 27, 2024 by
Timothy Hsieh