Friday, May 16, 2008
Posted by D. Daniel Sokol
ABSTRACT: In the eye of the historian, published judicial decisions are badly incomplete accounts of the disputes they resolve. Some incompleteness stems from the nature of the judicial process. For example, courts have neither the means nor the duty to recount the parties’ choice of litigation strategies. Nor can a judge discuss, except by speculation, the actual effects of a decision just taken. Other gaps can result from the court’s vanity. Wanting to seem unassailably correct, judges sometimes replace the losing party’s best facts and arguments with flimsy strawmen, who collapse beneath the tribunal’s awesome logic. Some decisions give such lopsided portrayals of events that one wonders why the vanquished party ever joined the battle.
To give the fuller historical context and consequences of famous law cases, Foundation Press created its Stories series of texts. The essays assembled by Eleanor Fox and Daniel Crane in Antitrust Stories show the wisdom of theendeavor. The antitrust collection serves two valuable ends. First, the essays will help experts and novices understand the origins, disposition, and consequences of thirteen disputes that shaped the U.S. antitrust system. Foundation’s Stories series mainly targets students in U.S. law schools, but even competition policy experts who think they know it all are likely to come away from this well-conceived volume with renewed intellectual curiosity and excitement about U.S. cases they have heard about, debated, or even read dozens of times.
A second major contribution of Antitrust Stories is to inspire broader reflections about how an economic system evolves. Antitrust is a natural home for the social scientist. Extensive discussion about the influence of economics on antitrust has overshadowed the power of other social science disciplines to explain the development of law and policy. Antitrust Stories shows why literacy in history should be standard equipment for competition economists and lawyers.
This review assesses Antitrust Stories from two perspectives. It first considers how well the contributors met the editors’ challenge “to scratch the legalistic surface and unveil the human dimension” of the cases. This discussion considers the techniques the contributors have used to tell their “stories” and, more generally, discusses how one might best prepare histories of antitrust cases.
The second focus of this review is the interpretations that the authors give to their case histories. The main weakness of Antitrust Stories is the lack of a standalone, critical essay that identifies important themes that link individual chapters, assesses the soundness of the narrators’ stories, and alerts the audience to important alternative interpretations. This omission matters most for the volume’s three first-person accounts, where the narrators were contestants in the disputes. For an audience that will consist substantially of those new to the U.S. antitrust system, the volume ought to have tried harder at least to alert readers to plausible alternative interpretations that students of competition law ought to know.