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"The Fractured Unity of Antitrust Law and the Antitrust Jurisprudence of Justice Stevens," Rutgers Law Journal, Volume 27, No. 3, 1996


The image of antitrust law that emerges from Justice Stevens's opinions has, I shall argue, several prominent features. First, he is searching for a coherence and unity in antitrust law. But this search is sharply constrained by his deep respect for both the will of the legislature, as revealed by the legislative history of the antitrust statutes, and judicial precedent. Taken together these legislative and judicial expressions make it difficult to adhere to the view that the goal of antitrust law is single-minded. And, the role that earlier opinions accord per se analysis makes it difficult to argue that there is a unitary approach to deciding antitrust cases. Second, Justice Stevens's strong support of the broad purposes of antitrust law leads him to stretch the reach of the statutes as far as possible. For example, he casts a skeptical eye on exemptions from the antitrust laws, and he insists that particular organizational relations between potential defendants not lead their joint activities to evade the grasp of those laws. But, although the Justice would have antitrust policy sweep broadly vis-a-vis potential defendants' activities, his notions of causal linkages often lead him to limit the set of plaintiffs who can attack those activities. Third, Justice Stevens recognizes the central role of the facts in each antitrust case, and he is extremely respectful of the job done by the trier of fact in the court of original jurisdiction. But sometimes he finds a deeper or richer understanding of these facts than did the court below-or than his colleagues do-and sometimes, for all his attention to the facts, he does not provide an interpretation that is clearly more illuminating than competing alternatives.

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