The Limits To Simplifying The Application Of U.S. Antitrust Law

In 1984, then-Professor (now-Judge) Frank Easterbrook published an article recommending that U.S. courts use five filters to dismiss antitrust cases without considering the merits of the plaintiff's or State's claim in any detail. According to Easterbrook, the courts' use of these filters would serve the public interest more by preventing them from mistakenly finding lawful conduct illegal than it would disserve the public interest by enabling some perpetrators of illegal conduct to escape liability or conviction. Although Easterbrook did not emphasize this fact, if his filters were as inexpensive to apply as he assumed, their use would also serve the public interest by reducing the transaction costs generated by antitrust litigation. Easterbrook's proposals belong to a wider set of proposals made and/or adopted by economists, antitrust law professors, antitrust judges, and antitrust enforcement officials that are designed to serve the public interest (usually, more specifically, to increase economic efficiency) by simplifying the application of U.S. antitrust law. This article argues that no member of any of the eight sets of proposals of this kind that have been made and/or adopted can bear scrutiny. It argues first that all these proposals must be rejected because they are too inaccurate to be morally acceptable or legally valid—that is, because they ignore the fact that the U.S. antitrust laws promulgate cognizable specific-anticompetitive-intent or decreasing-competition tests of legality (do not authorize the courts to “regulate” the conduct the statutes cover in the public interest, much less in the way that would be most economically efficient) and the related fact that the moral-rights bearers for whom the United States is responsible have a moral and legal right to courts, and juries' doing their best in individual cases to discover the answer to the legal claim at issue that is correct as a matter of law. It argues second that, for a variety of reasons, the proposals in question would not serve the public interest or increase economic efficiency even if such moral-rights considerations could be ignored because they are too inaccurate and relatively too transaction-costly to be desirable, moral rights considerations aside.