The Antitrust Bulletin, Vol. 33, No. 3 (Fall 1988), pp. 575-613


The proper role of neoclassical economic theory in the resolution of antitrust disputes will continue to be debated into the next administration. The Reagan Administration has succeeded in persuading the Supreme Court to incorporate laissez-faire assumptions and goals into Sherman and Clayton Antitrust Acts jurisprudence in at least three major decisions, although the long-range importance of the holdings in two of those cases remains somewhat in doubt.

One of those decisions, however, reflects more than just a disagreement about application is of the antitrust laws. In Matsushita, the Court, ordering summary judgment for defendants at the urging of the Justice Department, has tampered with fundamental "right-to-jury" principles and, in preferring economic illusion to the reality of a pretrial record, has revealed itself as capable of uncommon judicial activism. Briefly, the decision Matsushita (i) ignores existing Sherman Act summary judgment precedent; (ii) undermines longstanding rules of construction applicable in all summary judgment cases, thereby judicially amending the language of Rule 56, F.R.Civ.P., itself; (iii) substitutes the deductive assumptions of neoclassical economic theory for record evidence, standing logic on its head; (iv) misapplies predatory pricing theory in the context of a conspiracy case; and (v) creates a standard for proof of a conspiracy in civil Sherman Act cases which is far greater than the standard of proof for conspiracies in criminal cases, including criminal Sherman Act cases.

The primary concern of this article is the last noted effect of the Matsushita decision. By advocating and adopting the Matsushita standard for civil Sherman Act conspiracies, an maintaining a more liberal standard for proof of criminal conspiracies, the Justice Department and a majority of the Court, respectively, have stepped into the overtly political arena and implicitly disavowed fundamental tenets of our legal system. The schizophrenic attitude toward proof of Sherman Act conspiracies reflects the administration's underlying inconsistency between "laissez-faire" and "tough on crime"; the Administration fails to recognize that criminal antitrust enforcement is as interventionist as is civil enforcement of the same statutes.

This article will briefly discuss administration antitrust enforcement policy, through reference to speeches and policy statements. It will then describe the Matsushita decision an traditional antitrust summary judgment standards. The article will review and compare existing criminal conspiracy standards and their development and application in criminal antitrust cases. Finally, it will take a closer look at the proper relationship between economic principles and the conspiracy standard when proof of conspiracy must be inferred from circumstantial evidence of parallel business conduct.