Rebecca Haw

89 Texas L. Rev. 1247

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Currently, the courts sort out the details of what practices and pricing schemes amount to unreasonably anticompetitive behavior, and the Supreme Court has the final word on the Sherman Act’s meaning.  Yet, the Sherman Act is so vague and broad that developing specific rules under it is more like constitutional interpretation than statutory interpretation.  However, Sherman Act interpretation is different from typical common law questions.  It requires economic evidence, which the Court cannot gather on its own, and technical economic savvy, which the Court similarly lacks.  Instead, the Court looks to amicus briefs for assistance, which have considerable influence over its opinions.  So, by relying heavily on arguments from nonparties, the Court acts more like an administrative agency soliciting third-party input.

In this Article, Haw argues that instead of requiring the Court to approximate agency decision-making in this way, an antitrust agency should be created and given the authority to make Sherman Act rules.  Such an agency would have the advantage of economic expertise and would be accountable according to judicial review.

Haw first summarizes the history of amicus participation and the justifications for it in technical areas of the law.  She then shows that in relying on amici, the Court acts similar to an agency.  Next, she details the similarities and important differences between the Court and a proper rulemaking agency.

In light of this contrast, Haw argues that the Court’s hybrid solution loses some of the benefits of Article III’s cases and controversies requirement, while failing to fully realize the benefits of APA rulemaking.  She then provides a recent pair of examples of the Court’s rulemaking in antitrust cases.  In these, the Court made mistakes partially attributable to reliance on amicus briefs for economics.

With this background, Haw proposes that an agency should instead be endowed with norm-creation authority over antitrust policy.  Where amicus briefs fail, she argues, administrative procedures are more likely to succeed.