The Roberts Court and the Limits of Antitrust

IntroductionOne often hears two things about the Roberts Court's treatment of antitrust. The first is that this Court has displayed a greater interest in antitrust than its direct predecessor.1 That seems accurate. Whereas the Rehnquist Court showed little enthusiasm for antitrust cases in its later years, the Roberts Court issued seven antitrust decisions in its first two years alone.2 Some have attributed the trend toward more antitrust cases, and more business cases generally, to Chief Justice Roberts's years in private practice, during which he confronted a number of business and antitrust issues.3 Whatever its cause, there does seem to be an uptick in enthusiasm for antitrust cases on the current Supreme Court.The second oft-heard observation about the Roberts Court's antitrust decisions is that they betray a significant pro-business (or, pejoratively, anti-consumer) shift on the Court. Not surprisingly, left-leaning advocacy groups have repeatedly sounded this refrain.4 But even respected academics and leaders of the antitrust bar have construed the Roberts Court's antitrust decisions as being radically and reflexively probusiness. 5 For example, noted legal scholar Erwin Chemerinsky recently dubbed the Roberts Court "the most pro-business Supreme Court there has been since the mid-1930s" and has characterized the Court's antitrust decisions as "favoring business over consumers."6 Chemerinsky, by his own admission, is not an antitrust expert.7 The meme he recites has nevertheless been embraced by others who do have substantial antitrust expertise. For example, William Kolasky, a former Deputy Assistant Attorney General in the Antitrust Division of the U.S. Department of Justice and an associate editor of the American Bar Association's Antitrust magazine, made the following observations in 2008:Our Supreme Court, especially under the leadership of Chief Justice John Roberts, seems equally intent on cutting back on private enforcement. It has been more than fifteen years since the Supreme Court last decided an antitrust case in favor of a plaintiff. Over this fifteen-year period, plaintiffs have gone 0- for-16, with not a single plaintiff winning an antitrust case in the Supreme Court since the first George Bush was president. This record led Antitrust to ask in its last issue whether the Supreme Court's recent antitrust decisions represent "The End of Antitrust as We Know It?"8The central claim of this Article is that the second common assertion about the Roberts Court's antitrust jurisprudence-that it is probusiness and anti-consumer and represents a radical departure from the past-is wrong and reflects a misunderstanding of the antitrust enterprise. As a body of law regulating business conduct for the benefit of consumers, antitrust is inherently limited. Once one accounts for the limits of antitrust, the rulings of the Roberts Court, rather than "favoring business over consumers," seem calculated to maximize antitrust's effectiveness to the ultimate benefit of consumers. Specifically, the Roberts Court's antitrust cases embrace a decision-theoretic approach that seeks to minimize the sum of the decision and error costs that inevitably result from antitrust adjudication.This Article proceeds as follows: Part I sets forth the limits of antitrust and explains how a decision-theoretic approach, in light of these inherent limits, ultimately benefits consumers by maximizing the overall effectiveness of the antitrust enterprise.9 Part II then discusses the Roberts Court's antitrust decisions, demonstrating how each coheres with a decision-theoretic approach.10 Part III looks to the future and predicts how the Roberts Court, harnessing the insights of decision theory, will resolve several antitrust issues that are likely to come before it.11I. The Limits of Antitrust and the Need for a Decision- Theoretic ApproachWhen it comes to ensuring that consumers have access to low prices, high quality goods, and product variety, there is no better regulator than competition. …