594. Einer Elhauge, Harvard, Not Chicago: Which Antitrust School Drives Recent Supreme Court Decisions, 9/2007. subsequently published in Competition Policy International, Vol. 3, No. 2, Autumn 2007.
Abstract: After a long antitrust slumber, the Supreme Court has become active again in antitrust law, deciding seven cases in the last two years. Since all seven of these cases were decided against the plaintiff, one might think the Court has finally decided to implement the highly conservative Chicago school of antitrust. But so far, it shows no signs of doing so. Rather, while its opinions indicate a determination to cut back on some excesses from an earlier era of pro-plaintiff antitrust decisions, they also indicate an embrace of the moderate Harvard school approach to such issues, rather than an embrace of Chicago school principles. They further indicate a clear embrace of using sound economic analysis to resolve antitrust issues, rather than a resort to either the old formalisms that favored plaintiffs, or new formalisms that try to favor defendants.