Faculty Author Type

Current Faculty [Camden Hutchison]

Published In

Lewis & Clark Law Review

Document Type


Publication Date



antitrust; legal history; law and economics


Although law and economics has influenced nearly every area of American law, few have been as deeply and as thoroughly "economized" as antitrust. Beginning in the 1970s, antitrust law—traditionally informed by populist hostility to economic concentration—was dramatically transformed by a new and overriding focus on economic efficiency. This transformation was associated with a provocative new wave of antitrust scholarship, which claimed that economic efficiency (or "consumer welfare") was the sole legitimate aim of antitrust policy. The U.S. Supreme Court seemingly agreed, issuing decision after decision rejecting traditional antitrust values and adopting the efficiency norm of the law and economics movement. By century's end, the populist origins of antitrust had faded into memory, and the professional discourse of the antitrust community (scholars, practitioners, and judges) had become dominated by economic analysis. Although this transformation in antitrust law has been the subject of considerable academic commentary, its causes remain poorly understood. Many scholars assume, sometimes tacitly, that the economic analysis of law and economics scholarship had a direct, educative influence on the Supreme Court. Other scholars argue that changes in the Court’s antitrust jurisprudence were merely a reflection of changes in its composition, specifically the conservative appointments of the Nixon administration. What these opposing interpretations share in common is their limited evidentiary basis—both are derived from impressionistic reviews of a select number of Supreme Court decisions, rather than systematic analysis of larger historical trends. This article moves beyond previous scholarship by presenting a comprehensive, quantitative study of every Supreme Court antitrust case from 1950 to 2010, a period including the decades before, during, and after the economic turn in antitrust. This comprehensive approach allows for more generalized conclusions regarding the real-world influence of law and economics scholarship. Based on both quantitative and qualitative evidence, this article concludes that the Nixon appointments of the late 1960s and early 1970s were the primary cause of changes in antitrust jurisprudence, but that academic developments have infused these changes with an intellectual legitimacy they might otherwise have lacked, broadening their appeal and effectively insulating them from future changes in the composition of the Court.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.