Meerkins Discusses Dworkinian Antitrust in Iowa Law Review

In an article for the Iowa Law Review, Shook Associate Andy Meerkins discusses antitrust jurisprudence and its adherence to Ronald Dworkin's theory of integrity.

With co-author Professor John O. McGinnis, Meerkins provides an overview of the evolution of antitrust jurisprudence, from the Sherman Antitrust Act of 1890 through the progressivism of the New Deal and the economic rationality of the Chicago School of the 1960s and 1970s.

The authors then explore Dworkin's theory of integrity, which "maintains that judges decide cases based on principles—not only the rules laid down by legislatures—and in fact have no discretion, even when deciding hard cases." Even when a statute and the legislative intent are unclear, a judge decides a case based on principles, the authors explain. 

Meerkins and McGinnis then demonstrate how antitrust jurisprudence demonstrates Dworkin's theory, designating the guiding principle of antitrust as consumer welfare. "[C]onsumer welfare is the principle best justified as a matter of modern political morality, which has rule-of-law values that seek to constrain judicial discretion, as well as many other public laws that are better tailored to meet the other goals sometimes attributed to antitrust," they argue. Further, "integrity explains the structure of modern antitrust law," they assert, because "after the antitrust revolution, economic principles—rather than statutory text, precedent, or policy discretion—have become central to the development of antitrust. Moreover, integrity explains important but unusual features of antitrust law, such as why the past precedent has little generative power and why the Department of Justice/Federal Trade Commission guidelines have such persuasive power to the judiciary."

"Today, antitrust reflects a consistent focus on a single principle, and that principle is realized in individual cases by operation of a series of subprinciples derived from microeconomics," the authors conclude. "Thus, a better description of antitrust is found in Dworkin’s jurisprudence. Dworkinian integrity also explains unusual features, like antitrust law’s relative disregard of precedent and judicial reliance on Department of Justice guidance to inform analysis."

Dworkinian Antitrust, 102 Iowa L. Rev. 1 (with John McGinnis).