Law Commons^™

Who Cares Whether A Monopoly Is Efficient? The Sherman Act Is Supposed To Ban Them All, Robert H. Lande

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Section 2 of the Sherman Act was designed to impose sanctions on all firms that monopolize or attempt to monopolize regardless whether the firm engaged in anticompetitive conductor, and regardless whether the firm is efficient. This conclusion emerges from a textualist analysis of the language of Section 2. This article briefly analyzes contemporaneous dictionaries, legal treatises, and cases, and demonstrates that when the Sherman Act was passed the word “monopolize” simply meant that someone had acquired a monopoly. The term was not limited to monopolies acquired through anticompetitive conduct or monopolies that were inefficient. An attempt to monopolize also had …

Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande

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The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms:

1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My …

The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe Jr.

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The drafters of the Sherman Act originally designed Section 2 to impose

sanctions on all monopolies and attempts to monopolize, regardless whether the

firm had engaged in anticompetitive conduct. This conclusion emerges from the

first ever textualist analysis of the language in the statute, a form of interpretation

originally performed only by Justice Scalia but now increasingly used by the

Supreme Court, including in its recent Bostock decision.

Following Scalia’s methodology, this Article analyzes contemporaneous

dictionaries, legal treatises, and cases and demonstrates that when the Sherman

Act was passed, the word “monopolize” simply meant that someone had acquired

a monopoly. …

How Textualism Has Changed The Conversation In The Supreme Court, Jesse D.H. Snyder

University of Baltimore Law Review

No abstract provided.

The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer

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In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach …