Delay and Its Benefits for Judicial Rulemaking Under Scientific Uncertainty

INTRODUCTIONWatchers of antitrust law are often confounded by the slowness with which the Supreme Court adjusts doctrine to conform to new economic science.1 Why did it take decades for a compelling microeconomic theory to take down the ancient per se rule against resale price maintenance ("RPM")?2 Why did the Court drag its feet in changing an economically incoherent presumption of market power?3 And why is the Court still denying certiorari petitions that raise new and important antitrust concerns about a common business practice?4 The answer, in part, lies in the problems inherent in resting doctrine on the shifting sands of scientific opinion.This Article explores the phenomenon of Supreme Court delay in the context of antitrust jurisprudence, with the expectation that the lessons learned there will have broader implications. Uncertainty is frequently offered as a reason for Supreme Court action.5 The classic occasion for granting certiorari is the circuit split, in which disagreement among lower courts forces the Court to step in to resolve the dispute with a single, authoritative rule and saves parties and courts from continuing to suffer under doubt and ambiguity about what the law is.6 But one kind of uncertainty seems to be a reason for Supreme Court inaction. Where scientific facts necessary to the formulation of an optimal rule are uncertain, the Court delays making or changing a rule until academic debate has settled on a consensus, one that is observable and robust enough for the Court to accept as truth.7A new scientific theory presents a temptation and a risk to lay justices that want to design effective antitrust regulation. On the one hand, new scientific knowledge tempts the Court with the promise of scientific currency, a form of insurance against rule obsolescence and inefficiency. But the rapid pace of scientific change makes legal adoption of the latest economic fad risky. Today's popular new theory can be tomorrow's dead letter. A legal regime too reactive to change in economic opinion will flip-flop between antitrust rules with each new volley in the debate, which spells trouble for rule of law principles like stability and predictability.Alternatively, delay allows the Court to take a compromise position on new economics that harnesses the informational benefits of dynamic scientific thought and preserves rule stability and long-term accuracy. Delay puts a thumb on the scale of the status quo, which has its own informational and stabilizing benefits.And by putting off a decision, it also enriches the information available to the Court when next it reconsiders the antitrust rule. As indicia of economic consensus develop, so does the Court's confidence in making a major change to doctrine. Delay allows the Court to alter the legal landscape-sometimes dramatically-while minimizing the risk of error and unpredictability.Part I of this Article uses the Court's RPM jurisprudence-from 1911's Dr. Miles Medical Co. v. John D. Park & Sons Co. 8 to 2007's Leegin Creative Leather Products, Inc. v. PSKS, Inc.9-as a blueprint for its practice of delay.10 It reviews the intellectual history of the economic ideas behind Leegin,11 and observes that the Court passed up several earlier opportunities to use them in Dr. Miles.12 This Part argues that although a full causal account of why the Court took so long to overrule Dr. Miles would include other factors, the informational benefits of delay should be accounted for in any criticism of the Court's inertia.13 This Part then identifies other areas of antitrust law where the Court delayed conforming antitrust doctrine to developing economic thought, suggesting that its RPM jurisprudence is not anomalous.14Part II then makes the theoretical case for delay as an informationenhancing mechanism.15 Delay improves the scientific information available to the Court by allowing time for a scientific consensus to emerge, by providing information about the stability of an existing consensus, or by providing evidence of consensus where it is difficult for the Court to detect. …