US antitrust law evolves as the common law does: through experience, not logic. US statutes are framed in broad, almost constitutional terms, leaving the courts to define how those laws should be applied to an ever-changing economy and how new learning should be integrated into their application. Yet over the years, the Supreme Court has come to hear fewer and fewer antitrust cases, allowing the lower courts to develop antitrust doctrine until a split among the lower courts requires the high court to step in to resolve the conflict. It is for this reason that the Supreme Court’s 2004 term was so noteworthy. The Court heard four antitrust cases, two of which – Verizon v Law Offices of Curtis V Trinko (124 S Ct 872 (2004)) and F Hoffmann-LaRoche Ltd v Empagran (124 S Ct 2359 (2004)) – produced important decisions that will serve to define the limits of antitrust intervention for decades. It was disappointing that the Court declined to hear another case, 3M Co v LePage’s Inc (124 S Ct 2932 (2004)), which raised issues as to the antitrust treatment of bundled discounts by dominant firms, leaving antitrust lawyers uncertain as to how to counsel clients in this area.
Antitrust and Trade Regulation
Date of this Version
William Kolasky, "Supreme Court in search of limiting principles" (September 2004). Wilmer Cutler Pickering Hale and Dorr Antitrust Series. Working Paper 41.