Berkeley Law

Antitrust opinions rely heavily on economic analysis but little on statutory text. Surprisingly, this text-free mode of interpretation is warmly endorsed by leading textualists such as Justice Scalia and Judge Easterbrook. We argue that their approach to antitrust is irreconcilable with their general theories of statutory interpretation. Their theory is that the antitrust texts are essentially lacking in content, operating as a delegation of policymaking authority to courts. We undertake a close textualist analysis of the Sherman Act and later antitrust statutes. For the conscientious textualist, the statutory texts are far from being blank checks. For instance, textualists have analyzed common law terms in other statutes far more cautiously than they interpreted section 1 of the Sherman Act, either applying the majority view of the state courts at the time of enactment or choosing among current variants of state common law. Nor do the texts of the antitrust statutes evidence a delegation to the courts - on the contrary, the only clear delegation of antitrust authority is to the FTC. Thus, textualists either need to rethink their theory of statutory interpretation or reconsider their allegiance to contemporary antitrust doctrine.