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Copyright (c) 2009 The University of Chicago
The Supreme Court Review

ARTICLE: WHAT WAS WARREN COURT ANTITRUST?

2009

The Supreme Court Review

2009 Sup. Ct. Rev. 347

Author

TONY A. FREYER

Excerpt

The Warren Court's antitrust jurisprudence provoked caricature, both as "coonskin cap" frontier law and as sentimental guardianship of mom and pop stores in an age of managerial capitalism. 1 In fact, early Court decisions, exemplified by Brown Shoe in 1962, embraced multiple antitrust goals, which reflected an ongoing dialogue in the legal and business world over exactly what antitrust should do, a dialogue occurring not only in law reviews but mainly in the pages of Fortune magazine. At the outset, multiple goals for multiple reasons were absorbed by the Court, but as time went on, the Court fragmented, and what appeared from the outside to be ambivalence was in fact growing internal consensus on how the activist majority prioritized the goals of antitrust. The internal deliberation over Brown Shoe provides the lens through which this development can be understood. The Court's internal deliberations occurred within a forgotten public debate over the soul of antitrust--played out especially in Fortune and by leading advocates such as Thurman Arnold--which this article reclaims.

Free-market critics insisted that the Warren Court protected small business competitors rather than truly efficient "imperfect" competition. 2 As the critics contributed to Fortune's ongoing antitrust dialogue, they confronted opposing behavior-oriented economic theories advocated by legal realists like Thurman Arnold and other antitrust experts. 3 Reflecting these economic and legal theories, the Warren Court's inner decision-making process implemented multiple antitrust policy goals beyond those the critics rejected. 4 This article places Warren Court antitrust within two major postwar ...
 
 
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