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Antitrust Law: Supreme Court
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The history of the antitrust treatment of mergers provides a vivid illustration of how the law shifted its focus from the ex post regulation of harm to the ex ante prevention of risk. With the Celler-Kefauver amendments to ยง7 of the Clayton Act, Congress tasked the agencies and the courts with preventing increased market concentration in its incipiency. The subsequent passage of the Hart-Scott-Rodino Act in 1976 transformed merger practice from ex post litigation into a forward-looking regulatory discipline. That latter shift was so momentous, that the Supreme Court has not decided a merger case since 1975. The change from ex post regulation of harm to ex ante prevention of risk ... contributed significantly to the rapid assimilation of economics into antitrust jurisprudence. Faced with the task of having to make predictions about post-merger prices, antitrust courts and agencies turned to economic science for help.
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Vigorous enforcement of antitrust legislation created an immense body of case law. After 1950, Supreme Court decisions did more than anything else to shape antitrust doctrine. Two competing outlooks emerged. One regarded markets as fragile, easily distorted by private firms, and readily correctable through public intervention. Economic efficiency mattered less, in this view, than the belief in the antitrust doctrine's ability to meet social and political goals. The opposing view saw business rivalry as generally healthy, doubted that public intervention could cure defects, and emphasized the self-correcting ability of markets to erode private restraints and private power.
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[O]n Friday Broadcom appealed last month's dismissal without prejudice of its federal antitrust lawsuit against Qualcomm. The dismissal, by a U.S. District Judge in New Jersey, was appealed to the U.S. Court of Appeals for the Third Circuit. Broadcom believes the New Jersey judge's decision was based on an incorrect reading of antitrust law and is directly at odds with established precedent and with the recent unanimous decision of the U.S. Federal Trade Commission in the Rambus, Inc. matter. In an August 2 ruling, the FTC found that memory-maker Rambus' abuse of an industry standards-setting process constituted a violation of the antitrust laws.(1)
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These actions complement the private enforcement which has always been an important feature of United States antitrust law. The United States Supreme Court summarised why Congress allows punitive damages in Hawaii v. Standard Oil[58].
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Since the member nations and courts are expected to apply EU-wide law in most circumstances, this further federalizes antitrust law in the EU. However, having 25 different competing authorities and courts applying EU law could result in inconsistent application from nation to nation and ... create greater legal uncertainty for businesses.
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