George Mason
Law Review

“. . . No, the Other Common Law”: Antitrust as Equity Jurisprudence

Alexander J. Kraszewski
Volume 29
Issue 4

Introduction

It was a work of art, flawless, sublime—a triumph equaled only by its monumental failure.1The Matrix Reloaded (Silver Pictures 2003).

This is your last chance. After this there is no turning back. You take the blue pill, the story ends. You wake up in your bed and believe whatever you want to believe. You take the red pill, you stay in Wonderland, and I show you how deep the rabbit hole goes. Remember, all I’m offering is the truth. Nothing more.2The Matrix (Silver Pictures 1999).

Antitrust is suffering from a Matrix-like collective delusion3Id.—a shared dream world that everyone is certain is real: the Sherman Act is a “common-law statute.”4Leegin Creative Leather Prod., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007) (“From the beginning the Court has treated the Sherman Act as a common-law statute.” (citing Nat’l Soc’y of Prof. Eng’rs v. United States, 435 U.S. 679, 688 (1978))); Nw. Airlines, Inc. v. Transp. Workers, 451 U.S. 77, 98 n.42 (1981) (“In antitrust, the federal courts . . . act more as common-law courts than in other areas governed by federal statute.”). This pseudo-reality is ubiquitous and old. The Supreme Court and the federal courts have repeated it for decades;5See, e.g., id. the agencies charged with enforcing antitrust laws readily accept it;6E.g., Thomas O. Barnett, Assistant Att’y Gen., Antitrust Division, U.S. Dep’t of Just., Competition Law and Policy Modernization: Lessons from the U.S. Common-Law Experience (Nov. 16, 2007), https://perma.cc/9A8L-6D97. it is a staple of hornbook law;7E.g., Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 301 (4th & 5th eds., 2015–2021) (“[T]he Sherman Act may be seen not as a prohibition of any specific conduct but as a general authority to do what common law courts usually do: to use certain customary techniques of judicial reasoning; to consider the reasoning and results of other common law courts; and to develop, refine, and innovate in the dynamic common law tradition.”); Hans B. Thorelli, The Federal Antitrust Policy, Origination of an American Tradition 229 (1955). and it is an unspoken assumption in virtually all corners of academia.8E.g., Louis Kaplow, Antitrust, Law & Economics, and the Courts, Law & Contemporary Probs., Autumn 1987, at 181; Daniel M. Tracer, Stare Decisis in Antitrust: Continuity, Economics, and the Common Law Statute, 12 DePaul Bus. & Com. L.J. 1, 2 (2013); Charles S. Dameron, Present at Antitrust’s Creation: Consumer Welfare in the Sherman Act’s State Statutory Forerunners, 125 Yale L.J. 1072, 1075–76 (2016). And it is absolutely, utterly wrong. But there is an alternative explanation with a Cinderella-slipper fit for antitrust jurisprudence hiding in plain sight: equity. And—in addition to coherently justifying antitrust’s history and present—an equity taxonomy of antitrust has important implications for its future.

Before exploring how far this rabbit hole goes, a little on where it came from. In the Sherman Act’s case, despite its apotheosis to great charter,9United States v. Topco Assocs., Inc., 405 U.S. 596, 610 (1972) (“Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.”). its text is largely an empty vessel. In pertinent part, it provides: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”1015 U.S.C. § 1.

“[R]ead literally, § 1 would outlaw the entire body of private contract law.”11Nat’l Soc’y of Prof. Eng’rs v. United States, 435 U.S. 679, 687–88 (1978) (“One problem presented by the language of section 1 of the Sherman Act is that it cannot mean what it says. The statute says that ‘every’ contract that restrains trade is unlawful. But, as Mr. Justice Brandeis perceptively noted, restraint is the very essence of every contract; read literally, section 1 would outlaw the entire body of private contract law. Yet it is that body of law that establishes the enforceability of commercial agreements and enables competitive markets—indeed, a competitive economy—to function effectively.”). The traditional tools of statutory interpretation do little to refine its scope. The operative term, “restraint of trade or commerce,” is astoundingly broad, and the later Clayton Act only amplifies this problem by adding a loose, probabilistic coup de grâce.12See 15 U.S.C. § 14 (“[W]here the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.”). The law’s architects envisioned that the federal courts would fill in the details.13See 21 Cong. Rec. 2456-58 (1890) (remarks of Sen. Sherman) (“The first section, being a remedial statute, would be construed liberally, with a view to promote its object. It defines a civil remedy, and the courts will construe it liberally; they will prescribe the precise limits of the constitutional power of the Government; they will distinguish between lawful combinations in aid of production and unlawful combinations to prevent competition and in restraint of trade”). But there is almost no scaffolding to even start with, let alone any of the traditional guardrails of statutory interpretation. As a result, “restraint of trade” and the text of the act itself are underdefined.14See id. (depicting how the legislative history is barren of facts for a court to fill in the gaps). One must go elsewhere for a limiting principle and a workable definition.15See, e.g., Bd. of Trade of Chi. v. United States, 246 U.S. 231, 238 (1918) (“[T]he legality of an agreement or regulation cannot be determined by so simple a test, as whether it restrains competition. Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.”). Without such a buttress, antitrust law generally succumbs to incoherence.16See United States v. Von’s Grocery Co., 384 U.S. 270, 301 (1966) (Stewart, J., dissenting) (“The sole consistency that I can find is that in litigation under section 7, the Government always wins.”).

This problem arises from tradeoffs inherent in the drafting of any law.17Cf. Alan B. Morrison, The Necessity of Tradeoffs in a Properly Functioning Civil Procedure System, 90 Or. L. Rev. 993, 995 (2012) (discussing that tradeoffs will always exist, even for the most neutral rules or statutes). Written too generally, it risks over-inclusion; too narrowly, under-inclusion.18See generally South Dakota v. Dole, 483 U.S. 203, 214–15 (1987) (O’Connor, J., dissenting) (“[I]f the purpose of [a national minimum drinking age] is to deter drunken driving, it is far too over and under-inclusive. It is over-inclusive because it stops teenagers from drinking even when they are not about to drive on interstate highways. It is under-inclusive because teenagers pose only a small part of the drunken driving problem in this Nation.”). But antitrust is a special case. Owing to the breadth of its subject matter—trade—antitrust laws amplify this problem and push the tradeoff to vagueness versus impotence.

For antitrust, one can separate the external sources of definition and limiting principles—the Court’s extra-textual antitrust jurisprudence—into two distinct, but motivationally related interventions. The first, appearing in the earliest cases construing the Sherman Act, was the Supreme Court’s assumption of “reasonable” before “restraint of trade”—arguably the progenitor for the “common-law statute” theory writ large.19See Standard Oil Co. v. United States, 221 U.S. 1, 64–65 (1911). While “reasonable” is still a virtually meaningless phrase, it is one that courts have centuries of experience construing and could therefore apply a heuristic to the law.20See, e.g., Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (defining a “reasonable” expectation of privacy in cell site location information in the Fourth Amendment context); Pokora v. Wabash Ry. Co., 292 U.S. 98, 101–02 (1934) (construing reasonableness in the context of a negligence claim).

The second major category of “common law intervention” is now largely identified with the “Chicago School” and economic-oriented antitrust.21See infra Part II. In the 1970s, when confronted with a body of antitrust law that had been drifting into incoherence for decades, the Supreme Court effectively stapled several economics textbooks to the Sherman Act so that it might leave the preproduction stage of sense-making.22Douglas H. Ginsburg, Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making, 33 Harv. J.L. & Pub. Pol’y 217, 217–18 (2010) (“Forty years ago, the U.S. Supreme Court simply did not know what it was doing in antitrust cases. The Court had read into the Sherman Act an assortment of vague and, ironically, anti‐competitive social and political goals, such as protecting small traders from their larger, impersonal (and more efficient) rivals. . . . Then, starting in the 1960s, a generation of scholars developed what has aptly been called the ‘new learning’ in antitrust economics.”); see also United States v. Addyston Pipe & Steel Co., 85 F. 271, 283–84 (6th Cir. 1898), aff’d as modified, 175 U.S. 211 (1899) (Taft, C.J.) (“It is true that there are some cases in which the courts, mistaking, as we conceive, the proper limits of the relaxation of the rules for determining the unreasonableness of restraints of trade, have set sail on a sea of doubt, and have assumed the power to say, in respect to contracts which have no other purpose and no other consideration on either side than the mutual restraint of the parties, how much restraint of competition is in the public interest, and how much is not. The manifest danger in the administration of justice according to so shifting, vague, and indeterminate a standard would seem to be a strong reason against adopting it.”).

But the common law mantle has never rested comfortably on antitrust’s shoulders. For one, it is an oxymoron, with perhaps an added layer of irony given it is largely the rise of statutory law, circa the passage of the Sherman Act, that is responsible for the “death” of the common law.23See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and The Law 3, 10 (new ed. 2018) (“I do not suggest that Madison was saying that common-law lawmaking violated the separation of powers. He wrote in an era when the prevailing image of the common law was that of a preexisting body of rules, uniform throughout the nation (rather than different from state to state), that judges merely ‘discovered’ rather than created. It is only in this century, with the rise of legal realism, that we came to acknowledge that judges in fact ‘make’ the common law, and that each state has its own. I do suggest, however, that once we have taken this realistic view of what common-law courts do, the uncomfortable relationship of common-law lawmaking to democracy (if not to the technical doctrine of the separation of powers) becomes apparent. Indeed, that was evident to many even before legal realism carried the day. It was one of the principal motivations behind the law-codification movement of the nineteenth century, associated most prominently with the name of David Dudley Field, but espoused by many other avid reformers as well.”); James Maxeiner, Scalia & Garner’s Reading Law: A Civil Law for the Age of Statutes?, 6 J. Civ. L. Stud. 1, 9 (2013). The common law is also at odds with the approach taken by courts in the earliest cases construing the Sherman Act.24Infra Section II.A. Likewise, if one takes seriously the canons concerning the interplay of common and statutory law, the common law framework makes no sense—the history plainly contradicts what should have happened if this were really a “common law” of any sort.25See infra Part II. Further still, a trace of the concept’s provenance through the Supreme Court’s precedents finds dubious origins.26See id. In that sense, the antitrust laws may be sui generis as common-law statutes. But they fall into a millennia-old legal tradition as an exercise of equity.

This Comment argues, contrary to the near-universal consensus, that antitrust jurisprudence is rooted in equity and not common law. Equity is a glass-slipper-fit with both the history of antitrust jurisprudence and the modern state of it. And understanding that antitrust is equity is critical for any attempt to amend the antitrust laws. Part I delves into the history of equity—from its roots in Aristotle’s Nicomachean Ethics to what equity likely means in Article III of the Constitution of the United States—and explains why it is a perfect fit for antitrust jurisprudence. Part II looks at the history of the “common-law statute” understanding of the Sherman Act and offers reasons why this understanding makes no sense. Part III surveys the implications of an “equity antitrust” paradigm. The Comment then briefly concludes.

I.     “. . . to All Cases, in Law and Equity”27U.S. Const. art. III, § 2, cl. 1.

There are many ways in which antitrust can be grounded in equity, including in the facile sense that it is primarily concerned with injunctions.28See 15 U.S.C. § 26. Less facile is the idea that all antitrust causes of action are conceptually actions for unjust enrichment in an abstract sense, even if not necessarily at the level recognized by the law.29See Peter Birks, Unjust Enrichment and Wrongful Enrichment, 79 Tex. L. Rev. 1767, 1778 (2001). But the operative definition for the antitrust laws is “Equity” as it appears in Article III—the would-be source of an equity jurisprudence of federal antitrust.30U.S. Const. art. III, § 2, cl. 1.

“Equity,” as the Constitution is concerned with it, starts with Aristotle. Anglo-American treatises and commentators at the time of the founding largely adopted his definition; thus, it forms the basis for the hermeneutics of “Equity” in the Constitution.311 Joseph Story, Commentaries on Equity Jurisprudence: As Administered in England and America § 3 (14th ed., 1918) (“Thus Aristotle has defined the very nature of equity to be the correction of the law wherein it is defective by reason of its universality. . . . Grotius and Puffendorf have both adopted the definition of Aristotle; and it has found its way, with approbation, into the treatises of most of the modern authors, who have discussed the subject.”). But antitrust’s equitable characteristics are not confined to the founding era paradigm. Certain contours in the modern law of equity find parallels in the antitrust laws, although the full incorporation of equity principles into antitrust is incomplete and, perhaps, an ongoing process.32See infra Part III.

A.     Aristotle’s Equity and Its Outgrowths

In Greek, the term that translates to “equity” is ἐπιείκεια (epieikeia), and Aristotle uses it frequently throughout the Nicomachean Ethics, and often in the Rhetoric and Politics too,” in two different senses (as he acknowledges).33Roger A. Shiner, Aristotle’s Theory of Equity, 27 Loy. L.A. L. Rev. 1245, 1247 (1994). “By far the most common meaning is the general one—epieikeia means simply ‘excellence’ or ‘goodness.’”34Id. This is the meaning typically referred to in the Nicomachean Ethics.35Id. But, in three passages, Aristotle “refer[s] to a specific virtue, commonly said to be the virtue of equity, a particular kind of excellence.”36Id. Equity in this sense is “an epanorthoma nomou, hei elleipei dia to katholou, ‘a correction of law, where law falls short because of its universality.’”37Id.

Aristotle’s concept of equity largely defines the field in western law.38See, e.g., id. But his terse treatment of it leaves to later authorities the task of refining the concept. St. Thomas Aquinas addressed the topic in Summa Theologica, for example, devoting a question to equity’s place in his analytical jurisprudence.392b St. Thomas Aquinas, Question 120. “Epikeia” or Equity, in Summa Theologiae (Fathers of the Eng. Dominican Province trans., 2d & rev. ed. 1920) (1485) (“[Equity] corresponds properly to legal justice, and in one way is contained under it, and in another way exceeds it. For if legal justice denotes that which complies with the law, whether as regards the letter of the law, or as regards the intention of the lawgiver, which is of more account, then [equity] is the more important part of legal justice. But if legal justice denote merely that which complies with the law with regard to the letter, then [equity] is a part not of legal justice but of justice in its general acceptation, and is condivided with legal justice, as exceeding it. . . . As the Philosopher states, ‘[equity] is better than a certain,’ namely, legal, ‘justice,’ which observes the letter of the law: yet since it is itself a kind of justice, it is not better than all justice. . . . It belongs to [equity] to moderate something, namely, the observance of the letter of the law.”). But it is largely the English chancery courts that did the bulk of the work of formalizing a fairly sweeping statement of virtue ethics into a functioning body of law.40See generally, e.g., Story,supra note 31. Consider the now-proverbial criticism that equity varied with “the Chancellor’s foot” and the attendant reforms striving to make this not the case.41See H. Jefferson Powell, “Cardozo’s Foot”: The Chancellor’s Conscience and Constructive Trusts, Law & Contemp. Probs., Summer 1993, at 7 & n.3 (1993) (“The doctrines of this Court ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this Court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done any thing to justify the reproach that the equity of this Court varies like the Chancellor’s foot.” (quoting Gee v. Pritchard (1818) 36 Eng. Rep. 670, 674; 2 Swans. 402, 414 (Lord Eldon LC))). Despite this narrowing, Aristotle’s concept of equity survived mostly intact; take the following passage from Blackstone’s Commentaries:

From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius, ‘the correction of that wherein the law (by reason of its universality) is deficient.’ For, since in laws all cases cannot be foreseen or expressed, it is necessary that, when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. . . .

Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion . . . .421 William Blackstone, Commentaries *61–62. Although Blackstone cites to Grotius for the definition, Grotius’s work is in dialog with Aristotle; see generally Andrew Blom, Grotius and Aristotle: The Justice of Taking Too Little, 36 Hist. Pol. Thought 84 (2015).

In this sense, the English chancery courts did not deprecate Aristotle’s concept of equity; it is more that they put it behind break-in-case-of-emergency glass. Blackstone’s answer to his rhetorical question—is it better to have law or equity—implies law’s supremacy over equity, to some degree. But the Constitution commands both “Law and Equity” on an apparently equal footing—leaving courts to thread the eye of the needle.43U.S. Const. art. III, § 2, cl. 1 (emphasis added). This demonstrates the fundamental paradox of equity: it is an exception to the rule of law that acts in furtherance of it.

The nuances of how equity came to be included in the Constitution, however, are something of a mystery lost to time. The delegates to the Constitutional Convention debated the issue towards the end of the Convention.44Daniel A. Farber & Suzanna Sherry, A History of the American Constitution 87 (3d ed. 2013). For the day of this debate, August 27, 1787, James Madison’s notes record only three relevant details: First, that “Doct. Johnson [of Connecticut] suggested that the judicial power ought to extend to equity as well as law—and moved to insert the words ‘both in law and equity’”; second, that “Mr. Read [of Georgia] objected to vesting these powers in the same Court”; and third, the outcome of the vote in favor of Johnson’s proposal, which passed 6–2.45Voting “aye” were Connecticut, Georgia, Pennsylvania, New Hampshire, Virginia, and South Carolina. Delaware and Maryland were the only two states to vote no; New Jersey and North Carolina abstained on the question, and Massachusetts was absent from the debate. Id.; see U.S. Const. art. VII. The topic receives slightly longer treatment in The Federalist No. 80, where Alexander Hamilton addresses the question squarely but offers something of a legalistic take:

It has also been asked, what need of the word “equity.” What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States.46The Federalist No. 80 (Alexander Hamilton).

Hamilton then offers a concrete example:

It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate.47Id.

Strikingly, this could describe an antitrust offense; it is only a hierarchy of generality question about how to read “undue and unconscionable advantage.”48By “hierarchy of generality,” I refer to the way that the same concept or thing can be described broadly or narrowly by “zooming out or in.” For example, applying the hierarchy of generality to a dog, one could describe it as “Lassie” (a specific Rough Collie), a Collie more broadly, a dog generally, or a mammal. Going up or down the hierarchy of generality exchanges specificity for abstraction. Clearly, Hamilton is articulating a much narrower vision of equity here by describing a canonical equitable cause of action.49The Federalist No. 80 (Alexander Hamilton).

But there are good reasons to believe that, between The Philosopher and the Chancery courts, it is Aristotle’s definition that comes closer to the original public meaning of “Equity” in Article III. For one, the Federalist Papers, authoritative as they are, are political documents of then-limited circulation, meaning they are only (at best) indirect evidence of the original public meaning.50Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801, 803, 821–22 (2007) [hereinafter Maggs, Federalist Papers]. It is the original public meaning, or “original understanding”—and not original intent—that originalism is primarily concerned with. See, e.g., Alden v. Maine, 527 U.S. 706, 716–19 (1999) (discussing evidence of the “original understanding” of the ratifiers at the state ratifying conventions). Granted, it might be slightly absurd to try and divine the collective hivemind of the 1071 men who voted to ratify the Constitution—or is it the hivemind of the 724 men from the first nine States to ratify, as Article VII requires? See U.S. Const. art. VII. Nevertheless, while these types of arguments against originalism have “some merit, . . . none is so powerful that it should prevent any reliance on the records of the state ratifying conventions. Indeed, all are subject to counterarguments of varying strength.” Gregory E. Maggs, A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457, 460. Further, on this question, Hamilton’s training as a lawyer may bias him towards a legalistic answer.51See Paul Finkelman, Alexander Hamilton, Esq.: Founding Father as Lawyer, 1984 Am. B. Found. Res. J. 229, 235–36 (1984) (reviewing The Law Practice of Alexander Hamilton (Julius Goebel, Jr. & Joseph H. Smith, eds. 1964–81)). In contrast, other founding era sources directly anoint Aristotle’s definition. For example, none other than Justice Joseph Story speaks directly on the public meaning question in his Commentaries (regarded in the highest echelon of originalist sources):

It is of this [Aristotelian] Equity, as correcting, mitigating, or interpreting the law, that not only civilians but common law writers are most accustomed to speak; and thus many persons are misled into the false notion that this is the real and peculiar duty of the Courts of Equity in England and America.52Story, supra note 31, § 8.

While Story’s Commentaries were published almost forty years after the Convention, there is no reason to suspect the public understanding shifted dramatically during the intervening years. Underscoring his authority, the Supreme Court regularly cites to Story’s Commentaries for the founders’ understanding of equity, often in Seventh Amendment cases, the main area where the founding-era division between common law and equity is relevant.53E.g., Husky Int’l Elecs., Inc. v. Ritz, 578 U.S. 355, 360 (2016) (citing 1 Joseph Story, Commentaries on Equity Jurisprudence § 189 (6th ed., 1853)); CIGNA Corp. v. Amara, 563 U.S. 421, 440 (2011) (citing 1 Joseph Story, Commentaries on Equity Jurisprudence § 692 (12th ed., 1877)); Lonchar v. Thomas, 517 U.S. 314, 323 (1996) (citing 1 Joseph Story, Commentaries on Equity Jurisprudence 16 (13th ed., 1886)); Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 841 (1994) (Scalia, J., concurring) (citing 1 Joseph Story, Commentaries on Equity Jurisprudence § 61 (Redfield ed. & 10th ed., 1870)); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 285 (1988) (citing 1 Joseph Story, Commentaries on Equity Jurisprudence § 804 (J. Gould 10th rev. ed., 1892)); Hutcheson v. United States, 369 U.S. 599, 608 n.13 (1962) (citing 2 Joseph Story, Commentaries on Equity § 1494, n.1 (1836)); Tyler v. Black, 54 U.S. 230, 231 (1852) (citing 1 Joseph Story, Commentaries on Equity Jurisprudence §§ 245, 246). The Court’s first citation to the work was only a couple years after it was published. See Bank of U.S. v. Daniel, 37 U.S. 32, 39 (1838) (“In Mr. Story’s Commentaries on Equity . . . will be found an able and full discussion of the question.”). Most of the sources Story cites predate the Conventions, both Constitutional and Ratifying.54Story, supra note 31, § 8. Story is also pointing out a misconception widely held by the public, both professional and lay; his own position, as he later makes clear, is closer to Hamilton’s legalistic one—meaning we have no reason to suspect political motives on Story’s part, something that cannot be said of the Federalist Papers.55Id.; Maggs, Federalist Papers, supra note 50, at 829 & n.138.

Granted, Story only notes that the writers are “most accustomed to” and that “many persons are” of the Aristotelian view of equity, without quantifying their relative incidence.56See Story, supra note 31, §§ 3–10. But the view need not have been that widely held among the general public to show up in numbers among the ratifying convention delegates.57See supra note 45. And there are reasons to suspect the view may have been widely held and possibly even a majority view.

To start, Story himself hints that the view is widely held.58See Story, supra note 31, §§ 3–10. While Samuel Johnson’s 1755 dictionary only offers a brief definition of equity,59See 1 Samuel Johnson, E’quity, in A Dictionary of the English Language (1st ed. 1755) (defining Equity as “[j]ustice; right; honesty,” or as “impartiality,” or, “[i]n law” as “[t]he rules of decision observed by the court of Chancery”). Thomas Dobson’s pirated edition of Encyclopedia Britannica—published in Philadelphia between 1789 and 1798, and billed as “the First American edition”60Robert D. Arner, Dobson’s Encyclopaedia: The Publisher, Text, and Publication of America’s First Britannica, 17891803, at x (1991).—firmly echoes the Nicomachean sense of equity:

EQUITY, in jurisprudence, is defined a correction or qualification of the law, generally made in that part wherein it faileth or is too severe. It likewise signifies the extension of the words of the law to cases unexpressed, yet having the same reason; so that where one thing is enacted by statute, all other things are enacted that are of the like degree. For example, the statute of Glouc. gives action of waste against him that holds lands for life or years; and by the equity thereof, a man shall have action of waste against a tenant that holds but one year, or one half-year, which is without the words of the act, but within the meaning of it; and the words that enact the one, by equity enact the other. So that equity is of two kinds. The one abridges and takes from the letter of the law: the other enlarges and adds to it; and statutes may be construed according to equity, especially where they give remedy for wrong, or are for expedition of justice.

Equity seems to be the interposing law of reason, exercised by the lord chancellor in extraordinary matters to do equal justice; and by supplying the defects of the law, gives remedy in all cases.61Equity, in 6 Encyclopædia; or, A Dictionary of Arts, Sciences, and Miscellaneous Literature 699 (Philadelphia, Thomas Dobson 1798).

English refinements and The Federalist No. 80’s legalistic take aside, it seems like Aristotle’s definition largely made it intact into the founding-era understanding of equity.62Story, supra note 31, §§ 3–10. To include an Aristotelian understanding of equity in Article III may seem diametrically opposed to the narrow understanding Hamilton offers in The Federalist, but the evidence of original public meaning here is arguably much better than for a typical question of constitutional interpretation (if there is such a thing). In some sense, the true originalist “answer” is likely a combination of both Aristotle and Hamilton, as both views were probably well represented among the Ratifiers.63See The Federalist No. 80 (Alexander Hamilton). And there is historical evidence that this conception of equity has persisted in the law notwithstanding the limited menu of equitable causes of action.64See generally Peter Charles Hoffer, The Law’s Conscience: Equitable Constitutionalism in America, at xii (1990) (exploring the friction between equity as an ideal and the dearth of available equitable remedies). With that in mind, we can now turn to what makes equity a workable body of law and the likely limits imposed on equitable interpretation.

B.     The Modern Contours of Equity

As the Supreme Court has repeatedly cautioned, to call something “equitable” is not an invitation to “ignore th[e] body of statutes, rules, and precedents. . . . ‘[C]ourts of equity must be governed by rules and precedents no less than the courts of law.’”65Lonchar v. Thomas, 517 U.S. 314, 323 (1996) (quoting Missouri v. Jenkins, 515 U.S. 70, 127 (1995) (Thomas, J., concurring)). Indeed, there is some moral hazard with the flexibility of equity that almost compels this caution, lest Blackstone’s concerns become a reality.66See Blackstone, supra note 42 and accompanying text. Thus, even in the flexible realm of equity incorporating Aristotle’s view, there are still rigorous bounds on the court’s exercise of this type of equity jurisprudence.

Courts have “formalized” or “rigorized” equity, without fundamentally destroying its discretionary character, through the adoption of several principles expressed at a high level of generality.67See, e.g., Roscoe Pound, The Maxims of EquityI: Of Maxims Generally, 34 Harv. L. Rev. 809 (1921) (tracing the evolution of the maxims of equity). These principles form the “maxims of equity”—guideposts limiting the court’s discretion in service of the rule of law.68See generally Richard Francis, Maxims of Equity, Collected From, and Proved by Cases, Out of the Books of the Best Authority, in the High Court of Chancery (3d ed. 1791) (discussion of the pre-colonial state of equity maxims).

Traditionally, the foremost maxims are that equity will not suffer an injustice and that equity acts in personam.69Edmund Snell, R.E. Megarry & P.V. Baker, Snell’s Principles of Equity 30 (25th ed. 1960) (“Indeed, it would not be difficult to reduce [all the maxims] under the first and the last, ‘Equity will not suffer a wrong to be without a remedy,’ and ‘Equity acts on the person.’”). These maxims act in concert to give equity an individualized, all-of-the-circumstances evaluation, as does the maxim that equity regards substance over form.70E.g., Slater v. U.S. Steel Corp., 820 F.3d 1193, 1247 n.207 (11th Cir. 2016) (cataloging 13 maxims of equity).

Perhaps more relevant to this Comment are the maxims geared towards limiting principles, like the maxim that equity follows the law.71See generally R.L. McWilliams, Equity Follows the Law, 66 Cent. L.J. 177 (1908). This maxim attempts to answer the problem of the Chancellor’s foot, in principle by cabining the discretion equity would otherwise offer to modest extensions of the law.72E.g., Hedges v. Dixon Cnty., 150 U.S. 182, 192 (1893) (“The established rule, although not of universal application, is that equity follows the law, . . . ‘that, wherever the rights or the situation of parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation.’” (quoting Magniac v. Thomson, 56 U.S. 281, 299 (1854))). As the Court’s hedging in Hedges reveals, another paradox or irony of equity is that the maxims, intended to cabin discretion, are somewhat discretionary themselves. See id.

Another maxim in this vein is the requirement that those who invoke equity must do so with “clean hands.” As the Supreme Court explained in Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co.,73324 U.S. 806 (1945). this maxim exists to ward against bad faith motivation and gamesmanship.74Id. at 814–15. Importantly, the notion of “clean hands” is “not bound by formula or restrained by any limitation” as to what qualifies—meaning conduct need not be illegal or even tortious, just willfully transgressive in some way.75Id. at 815 (quoting Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 245–46 (1933)).

As Part III will explain, many of the “common-law” additions to the antitrust laws derive naturally from the above maxims. Couple this with the fact that the “common-law statute” justification makes no sense, and the natural conclusion is that antitrust has been equity all along.

II.     The History of the “Common-Law Statute” and Why It Makes No Sense

The actual phrase “common-law statute” (as applied to antitrust) is a surprisingly new one—those words first appear in 2007 in Leegin Creative Leather Products, Inc. v. PSKS, Inc.76551 U.S. 877, 899 (2007). The idea is obviously older—although perhaps not as old as one would expect. Closer scrutiny of the history of antitrust jurisprudence with an eye to this issue specifically finds the Genesis-like pronouncement of the Leegin Court—“[f]rom the beginning the Court has treated the Sherman Act as a common-law statute”77Id.—rather dubious.

That is not to say that early courts did not exercise any “gap-filling” function. But even for Justices to whom the letter of the law is more an “inconvenient hurdle” than “binding dictate,”78E.g., Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (“It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.”). the hurdle remains steep: How does one make sense of antitrust laws that seem to make everything under the sun a felony? One realistic option—that the antitrust laws only barely skirt—is that such laws are unconstitutionally void for vagueness.79This idea has proponents across the antitrust ideological spectrum; Bork suggests anything other than a consumer welfare standard would create vagueness. Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself 82 (1978); see also Andrew S. Oldham, Sherman’s March (in)to the Sea, 74 Tenn. L. Rev. 319, 346 (2007) (“Congress chose to frame the antitrust laws in sweepingly broad terms . . . .”); D. Daniel Sokol, Reinvigorating Criminal Antitrust?, 60 Wm. & Mary L. Rev. 1545, 1579 (2019) (explaining how antitrust laws may face a vagueness problem); Robert H. Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division, 74 Yale L.J. 775, 777, 783, 792 (1965) (stating that it is difficult to discern the intent of Congress from the language of the Sherman Act); Matthew G. Sipe, The Sherman Act and Avoiding Void-for-Vagueness, 45 Fla. St. U. L. Rev. 709, 710 (2018) (“More than a century of judicial gloss has failed to repair the defect latent in the Sherman Act since its conception: unconstitutional vagueness.”); Daniel A. Crane, The Tempting of Antitrust: Robert Bork and the Goals of Antitrust Policy, 79 Antitrust L.J. 835, 844 (2014) (“Bork argued that the antitrust statutes reflected a smorgasbord of incongruous goals and purposes . . . .”). The antitrust laws avoided that fate only with the Court’s extensive interventions over the years—effectively stapling several economics textbooks to the law.80Ginsburg, supra note 22, at 221–23; see also United States v. Addyston Pipe & Steel Co., 85 F. 271, 283–84 (6th Cir. 1898) (Taft, J.) (“It is true that there are some cases in which the courts, mistaking, as we conceive, the proper limits of the relaxation of the rules for determining the unreasonableness of restraints of trade, have set sail on a sea of doubt, and have assumed the power to say, in respect to contracts which have no other purpose and no other consideration on either side than the mutual restraint of the parties, how much restraint of competition is in the public interest, and how much is not. The manifest danger in the administration of justice according to so shifting, vague, and indeterminate a standard would seem to be a strong reason against adopting it.”), aff’d, 175 U.S. 211 (1899). The Supreme Court first did so by transmogrifying “restraint of trade,” through a touch of judicial alchemy, into a legal term of art incorporating a common law tradition; thus, only “unreasonable” restraints of trade are prohibited.81See, e.g., Nat’l Soc. of Pro. Eng’rs v. United States, 435 U.S. 679, 688 (1978).

The second intervention comes after Congressional responses to the first in the form of the Clayton and FTC Acts.82See15 U.S.C. §§ 12–27; see also 15 U.S.C. §§ 41–58. Both represent explicit Congressional responses to Standard Oil Co. v. United States83221 U.S. 1 (1911). and the insertion of the reasonableness standard.84Keith N. Hylton, Antitrust Law: Economic Theory and Common Law Evolution 39 (2003). For a while, the Supreme Court tried to earnestly heed Congress after such a stunning rebuke.85See generally Joshua D. Wright, Elyse Dorsey, Jonathan Klick & Jan M. Rybnicek, Requiem for a Paradox: The Dubious Rise and Inevitable Fall of Hipster Antitrust, 51 Ariz. St. L.J. 293 (2019) (tracing the history of the antitrust laws). That would prove untenable, however, as the looser language of the Clayton Act eventually led the law into incoherency.86Ginsburg, supra note 22, at 217–18, 232; see also United States v. Von’s Grocery Co., 384 U.S. 270, 301 (1966) (Stewart, J., dissenting) (“The sole consistency that I can find is that in litigation under [The Clayton Act], the Government always wins.”). This history inspired what has since been called the “Chicago School” of antitrust, which sought to bring coherence to the law by using economics to restrict the degrees of freedom in the text.87Ginsburg, supra note 22, at 218, 237; Wright et al., supra note 85, at 302–05; see also Bork, supra note 79, at 82.

Critical commentators tend to think either the first or the second intervention is illegitimate, depending on their political persuasion.88Wright et al., supra note 85, at 295. Both, but particularly the second, are dubious under a common law framework. But they make perfect sense when gauged by equity.

A.     Early Roots

Following the provenance from Leegin to a source outside of the Court’s own precedents leads to National Society of Professional Engineers v. United States,89435 U.S. 679 (1978). where (in a footnote) the Court cites to two places: first to the Congressional Record for the comments of Senator Sherman during the debate on his namesake Act, and second to Hans Thorelli’s book, Federal Antitrust Policy.90Id. at 688 n.11.

A look at antitrust’s genesis in the Senate debates makes it indisputable that the drafters of the Sherman Act envisioned heightened involvement from the courts.9121 Cong. Rec. 2456 (1890) (remarks of Sen. Sherman) (describing how sections of the Sherman Act will “enable courts of the United States to restrain, limit, and control” unlawful restraints of trade “to the same extent that the State courts habitually control” such restraints of trade). But it is not at all clear that they intended it to become a “common-law statute” or anything of the kind.92Id. But see Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007) (“From the beginning the Court has treated the Sherman Act as a common-law statute.”). True, the Senate debates over the Sherman Act have something of an inkblot quality; one can read them and support any number of conclusions.

But take this statement from Senator Sherman, the Act’s namesake, when introducing the aims of section 1:

The first section, being a remedial statute, would be construed liberally, with a view to promote its object. It defines a civil remedy, and the courts will construe it liberally; they will prescribe the precise limits of the constitutional power of the Government; they will distinguish between lawful combinations in aid of production and unlawful combinations to prevent competition and in restraint of trade; they can operate on corporations by restraining orders and rules; they can declare the particular combination null and void and deal with it according to the nature and extent of the injuries.9321 Cong. Rec. 2456 (1890) (remarks of Sen. Sherman).

The closest Senator Sherman comes to saying anything resembling the proposition that the Sherman Act is a “common-law statute” comes in the following passage:

This bill, as I would have it, has for its single object to invoke the aid of the courts of the United States to deal with the combinations described in the first section when they affect injuriously our foreign and interstate commerce and our revenue laws, and in this way to supplement the enforcement of the established rules of the common and statute law by the courts of the several States in dealing with combinations that affect injuriously the industrial liberty of the citizens of these States. It is to arm the Federal courts within the limits of their constitutional power that they may co-operate with the State courts in checking, curbing, and controlling the most dangerous combinations that now threaten the business, property, and trade of the people of the United States.94Id. at 2457.

If one squints and tilts their head, this could plausibly read as a grant of common law authority. But Senator Sherman explicitly forecloses such an idea only a few lines later:

I admit that it is difficult to define in legal language the precise line between lawful and unlawful combinations. This must be left for the courts to determine in each particular case. All that we, as lawmakers, can do is to declare general principles, and we can be assured that the courts will apply them so as to carry out the meaning of the law, as the courts of England and the United States have done for centuries. This bill is only an honest effort to declare a rule of action, and if it is imperfect it is for the wisdom of the Senate to perfect it.95Id. at 2460.

Thorelli’s book offers no independent source for the notion of a common-law statute; it merely restates what Senator Sherman articulated above—that the authors of the bill envisioned an expanded role for the courts in the Sherman Act.96Thorelli, supranote 7, at 228–29.

It in no way follows that, just because Congress envisioned an expanded role for the courts, it also delegated to them lawmaking authority. The Court struggled with this conclusion but ultimately rejected it in United States v. Trans-Missouri Freight Association,97166 U.S. 290 (1897). one of the earliest Supreme Court cases to construe the Sherman Act.98Id. at 311–14. Indeed, the Trans-Missouri Court explicitly considered and rejected the argument that the Professional Engineers Court would later rest on.99Compare id. at 340–41 (“The arguments which have been addressed to us against the inclusion of all contracts in restraint of trade, as provided for by the language of the act, have been based upon the alleged presumption that congress, notwithstanding the language of the act, could not have intended to embrace all contracts, but only such contracts as were in unreasonable restraint of trade. Under these circumstances, we are therefore asked to hold that the act of congress excepts contracts which are not in unreasonable restraint of trade, and which only keep rates up to a reasonable price, notwithstanding the language of the act makes no such exception. In other words, we are asked to read into the act, by way of judicial legislation, an exception that is not placed there by the lawmaking branch of the government, and this is to be done upon the theory that the impolicy of such legislation is so clear that it cannot be supposed congress intended the natural import of the language it used. This we cannot and ought not to do.”), with Nat’l Soc. of Pro. Eng’rs v. United States, 435 U.S. 679, 688 (1978) (“Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute’s broad mandate by drawing on common-law tradition. The Rule of Reason, with its origins in common-law precedents long antedating the Sherman Act, has served that purpose. It has been used to give the Act both flexibility and definition, and its central principle of antitrust analysis has remained constant. Contrary to its name, the Rule does not open the field of antitrust inquiry to any argument in favor of a challenged restraint that may fall within the realm of reason. Instead, it focuses directly on the challenged restraint’s impact on competitive conditions.”). Trans-Missouri actually goes further and mocks the idea that “the impolicy of such legislation is so clear that it cannot be supposed congress intended the natural import of the language it used.”100Trans-Missouri, 166 U.S. at 340. In contrast, the Professional Engineers Court found it “perfectly clear” that Congress expected the courts to “shape to the statute’s broad mandate.”101Pro. Eng’rs, 435 U.S. at 688. Oops.

Trans-Missouri actually makes a perfectly coherent argument that the importation of “unreasonable” in the Sherman Act would far exceed the scope of the judicial duty.102One might plausibly characterize the Court as making a version of a separation of powers or nondelegation argument. See Trans-Missouri, 166 U.S. at 328–29 (“Proceeding, however, upon the theory that the statute did not mean what its plain language imported, and that it intended in its prohibition to denounce as illegal only those contracts which were in unreasonable restraint of trade, the courts below have made an exhaustive investigation as to the general rules which guide courts in declaring contracts to be void as being in restraint of trade, and therefore against the public policy of the country. . . . But we cannot see how the statute can be limited, as it has been by the courts below, without reading into its text an exception which alters the natural meaning of the language used, and that, too, upon a most material point, and where no sufficient reason is shown for believing that such alteration would make the statute more in accord with the intent of the lawmaking body that enacted it.”). To this end, common law is, by definition, judge-made; so, it is an open question if Congress can actually create a statutory common law with the modern understanding of nondelegation doctrine. While the line at the margin is blurry, to openly grant judges lawmaking authority does not pass constitutional muster. Given the straightjacket the Court put itself in, how did the Standard Oil Court manage to get “unreasonable” read in? Answer: it dismissed the language in Trans-Missouri as dicta.103Standard Oil Co. v. United States, 221 U.S. 1, 64 (1911) (“It is undoubted that, in [Trans-Missouri], general language was made use of, which, when separated from its context, would justify the conclusion that it was decided that reason could not be resorted to for the purpose of determining whether the acts complained of were within the statute. It is, however, also true that the nature and character of the contract or agreement in each case was fully referred to, and suggestions as to their unreasonableness pointed out in order to indicate that they were within the prohibitions of the statute.”); see generallyTrans-Missouri, 166 U.S. 290.

So, already, there is something suspect going on. The incompatibility of Trans-Missouri with Professional Engineers and Standard Oil is perhaps only a grievous blow and not a fatal one. On these facts alone the conclusion is doubtful, but there is enough ambiguity in the text that it is not the most egregious leap the Supreme Court has ever made.104E.g., King v. Burwell, 576 U.S. 473, 506 (2015) (Scalia, J., dissenting) (decrying the Court’s “interpretive jiggery-pokery”). The second major saving intervention, however—the Chicago School and Harvard School intellectual antitrust revolution105William E. Kovacic, The Intellectual DNA of Modern U.S. Competition Law for Dominant Firm Conduct: The Chicago/Harvard Double Helix, 2007 Colum. Bus. L. Rev. 1, 4, 6, 13–15.—conclusively puts to bed any notion of coherently describing the antitrust laws as “common-law statutes.”

B.     How Chicago and Harvard Bury Common Law Antitrust

The judicial prestidigitation of the Standard Oil Court might cut against the “common-law statute” framework, but it is the intellectual revolution in antitrust that puts the nail in its coffin. There is simply no doubt that the Clayton and FTC Acts were explicit responses to Standard Oil and the judicial insertion of “unreasonable.”106Hylton, supra note 84, at 39. That fact alone unravels the common law sweater.

In a sense, this is the Sherman Act’s Erie Railroad Co. v. Tompkins107304 U.S. 64 (1938). problem. Granted, in the wake of the pronouncement that “[t]here is no federal general common law,”108Id. at 78. a “keener understanding developed” that “Erie ‘left to the states what ought be left to them,’ and thus required ‘federal courts to follow state decisions on matters of substantive law appropriately cognizable by the states.’”109Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 421 (2011) (quoting Henry Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383, 405, 422 (1964)). But it also allowed for a “new” federal common law that “addresses ‘subjects within national legislative power where Congress has so directed’ or where the basic scheme of the Constitution so demands.”110Id. (quoting Friendly, supranote 109, at 408 n.119, 421–22).

One might ask, “What’s the problem?” After all, the language above squarely places antitrust in the realm of federal common law—“subjects within the national legislative power.”111Id.. Well, for one, it might not under an originalist view of the Commerce Clause.112Cf. Gonzales v. Raich, 545 U.S. 1, 33–35 (2005) (Scalia, J., concurring) (“[U]nlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone.”). Furthermore, given the fact that “restraint of trade” as a term of art comes from state law to begin with, there is no principled distinction to withdraw contract but not antitrust from “federal general common law,” sparing the subject-specific one.113See supra note 99 and accompanying text.

The problem arises only if one accepts the “common-law statute” frame. Under such a framework, the Clayton and FTC Acts are statutes in derogation of the common law (by virtue of them being congressional responses to Standard Oil).114See Wright et al., supra note 85, at 298; Am. Elec. Power Co., 564 U.S. at 423. Under the Court’s precedents, that should be fatal to the common law story of antitrust.115Am. Elec. Power Co., 564 U.S. at 423.

This follows because when Congress displaces federal common law in such a manner, “the need for such an unusual exercise of law-making by federal courts disappears.”116Id. (quoting City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304, 314 (1981)). This type of “[l]egislative displacement of federal common law” requires no “evidence of a clear and manifest congressional purpose.”117Id. (quoting Milwaukee II, 451 U.S. at 317). And the Clayton and FTC Acts more than meet the test, which is “simply whether the statute ‘speaks directly to the question’ at issue.”118Id. at 424 (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). Unless the Court makes a special carve-out to the congressional displacement doctrine, it should foreclose the fiction that antitrust is, in any way, common law.

That left the Chicago and Harvard Schools and other antitrust reformers in something of a conundrum.

Forty years ago, the U.S. Supreme Court simply did not know what it was doing in antitrust cases. The Court had read into the Sherman Act an assortment of vague and, ironically, anti‐competitive social and political goals, such as protecting small traders from their larger, impersonal (and more efficient) rivals.119Ginsburg, supra note 22, at 217–18.

For the antitrust reformers who wanted to make antitrust make sense—a broad group spanning many political persuasions120See id. at 218, 221; Wright et al., supra note 85, at 298, 300.—the common law tradition was a convenient vehicle for their various reforms.121See Wright et al., supra note 85, at 298, 300. In the current dialog, there are some who decry this move as an illegitimate exercise of judicial power—including the sitting chair of the FTC.122See Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 737–38 (2017). But there is nothing nefarious afoot if one simply accepts that the Supreme Court imposed the consumer welfare standard as an exercise of equity jurisprudence. So understood, the antitrust reforms of the 1970s and 1980s fall along a natural continuity and are not the divergence that Chair Lina Khan makes them out to be.123See id. at 718–19, 724, 727–28.

An equity jurisprudence of antitrust goes further and resolves several vexing questions or hand-waving justifications. But it does so at a steep price: to accept an equity jurisprudence of antitrust is to acknowledge that originalism and textualism are in tension with each other and possibly completely incompatible at the margins.

III.     Antitrust as Equity Jurisprudence

If one accepts the proposition that antitrust is equity, it has several implications for both the current state of antitrust and possibly its future. Several antitrust exemptions and precedents may be more vulnerable than they appear when considered under this equity perspective. So too the other way; some controversial precedents perhaps ought not to be. Possibly the most important implication of antitrust rooted in equity is the quasi-constitutional status of the rule of reason.

A.     Equity Maxims as Antitrust Cases

Although not a perfect mapping, several equity maxims have direct analogs in antitrust cases and doctrines. To start, the rule of reason might be the quintessence of “regarding substance rather than form,” with its broad inquiry that ultimately balances the economic effects of a challenged restraint. The “sham” litigation requirement of the Noerr-Pennington doctrine124See Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56–59 (1993). parallels the notion of “clean hands,” as does the requirement of antitrust standing.

Perhaps most relevant to this Comment is the maxim that equity follows the law.125E.g., McWilliams, supra note 71, at 177. As the then-Master of the Rolls Sir Joseph Jekyll indignantly noted:

[T]he discretion which is exercised here, is to be governed by the rules of law and equity, which are not to oppose, but each, in its turn, to be subservient to the other; this discretion, in some cases, follows the law implicitly; in others, assists it, and advances the remedy; in others again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or over-turn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court.126Cowper v. Cowper (1734) 24 Eng. Rep. 930, 942 (Ch); 2 P. Wms. 720, 753–54.

Jekyll’s description rather neatly reflects the current reality of antitrust law—with the “common-law statute” descriptor either just shorthand or perhaps an effort to veil the moral hazard of this type of discretionary jurisdiction.127Even with the bounding force of the maxims, equity, when it performs a statutory interpretation function, is still extremely flexible. There may well be moral hazard in the Supreme Court clearly explicating antitrust in equity terms; such would no doubt be used by opportunistic lawyers as a crowbar against everything under the sun.

Perhaps the best indicator that equity helms the ship is how modern antitrust cases are argued and decided. While the causes of action in sections 1 and 2 of the Sherman Act ostensibly have elements, they either only serve a gatekeeping function128E.g.,United States v. Grinnell Corp., 384 U.S. 563, 570–571 (1966). or only operate in very narrow circumstances.129See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n.59 (1940); see also Robert H. Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division, 74 Yale L.J. 775, 821–22 (1965). Courts decide the overwhelming majority of antitrust cases under the “rule of reason,”130The rule of reason was formally sanctioned by the Supreme Court in Board of Trade v. United States when the Court held that “[t]he true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.” 246 U.S. 231, 238 (1918). However, its roots predate Board of Trade. Then-Circuit Judge Taft was an early proponent. See United States v. Addyston Pipe & Steel Co., 85 F. 271, 283 (6th Cir. 1898); see also William Howard Taft, The Anti-trust Act and the Supreme Court 113–17 (1914). which is quintessentially equitable.

The rule of reason is an all-of-the-circumstances balancing test.131See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885–86 (2007). As the Leegin Court explained, under a rule of reason inquiry “the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.”132Id. at 885 (quoting Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49 (1977)). Granted, that does not extend to everything under the sun; there are limits on what a court will consider.133Id. at 886. Nevertheless, it is still a broad freeform excursion in search of truth.134E.g., id. at 885–86 (“Appropriate factors to take into account include specific information about the relevant business and the restraint’s history, nature, and effect. Whether the businesses involved have market power is a further, significant consideration. In its design and function the rule distinguishes between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.” (citations omitted)).

One need only change a word here or there and add some color commentary to turn the Court’s description of the rule of reason into its description of equity powers. Take the following description of equity from Holland v. Florida135560 U.S. 631 (2010).:

[O]ften the “exercise of a court’s equity powers . . . must be made on a case-by-case basis.” In emphasizing the need for “flexibility,” for avoiding “mechanical rules,” we have followed a tradition in which courts of equity have sought to “relieve hardships which, from time to time, arise from a hard and fast adherence” to more absolute legal rules, which, if strictly applied, threaten the “evils of archaic rigidity.” The flexibility inherent in “equitable procedure” enables courts “to meet new situations” . . . . [C]ourts of equity can and do draw upon decisions made in other similar cases for guidance. Such courts exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.136Id. at 649–50 (quoting Bagget v. Bullit, 377 U.S. 360, 375 (1964); Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946); Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248 (1944)).

The only practical difference between this description of equity and antitrust jurisprudence is that equity is explicitly on a case-by-case basis, whereas antitrust operates globally (albeit to create case-by-case rules).137Cf. Jill E. Martin, Modern Equity 3–4 (14th ed. 1993). The Supreme Court seems to echo Holland and the description of equity every time it adopts a rule of reason standard.138E.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 905–07 (2007). The rationale and reasoning are identical to a letter. Antitrust is equity.

B.     Did the Supreme Court Miss This?

Anyone running counter to, or purporting to overturn, a century’s worth of settled understanding ought to have very good arguments for doing so. This Comment addresses three possible explanations for why the Supreme Court and almost the entire antitrust legal establishment failed to recognize the self-evident parallels between equity and antitrust and instead chose to ground antitrust in the common law.

First, it is not clear that the Supreme Court has failed to recognize this. For one, the Court has always been careful to use an analogy or simile to the common law rather than a bald assertion that “antitrust is common law,” which would be patently ridiculous.139Despite being somewhat ridiculous, commentators have not always been as careful as the Supreme Court. E.g., Michael L. Katz & A. Douglas Melamed, Competition Law as Common Law: American Express and the Evolution of Antitrust, 168 U. Pa. L. Rev. 2061, 2064 (2020). That the Court has not named antitrust as equity jurisprudence changes little in the actual mechanics of its rulings—the underlying jurisprudence operates in the same manner regardless of its legal source. Little, if anything, hinges on the distinction, especially after the merger of law and equity.140For a history of separate actions at law and equity in federal courts, see Charles T. McCormick, The Fusion of Law and Equity in United States Courts, 6 N.C. L. Rev. 283 (1928). For the most part it is an abstract question of analytical jurisprudence. It is an open question if it is even possible for a plaintiff to have standing to raise this issue.141Practically speaking, the positive aspect of this Comment’s thesis implies that there would not even be a change in law, just how the law is classified.

Second, the areas where the common law explanation is deficient are not without criticism and have been challenged by commentators before.142E.g., Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131, 131 (2018). This Comment does more to harmonize these challenges into an answerable, coherent whole, rather than raise a novel challenge itself.

Further, the equity-common law distinction as presented in this context is almost completely orthogonal to the usual way that the equity-common law distinction arises in the law, which is typically in the Seventh Amendment context (or an analogous statutory question). The Seventh Amendment guarantees the right to trial by jury “[i]n suits at common law,” but not, by implication, to suits in equity.143U.S. Const. amend. VII.

To figure out whether a given cause of action sounds in law or equity, courts determine “whether a particular action will resolve legal rights.”144Chauffeurs, Local No. 391 v. Terry, 494 U.S. 558, 565 (1990). Slightly circular, to determine what resolves legal rights first involves a comparison of “the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity.”145Tull v. United States, 481 U.S. 412, 417 (1987).

The court then “examine[s] the remedy sought and determine[s] whether it is legal or equitable in nature.”146Id. at 417–18. In that sense, because the Seventh Amendment question focuses on the nature of the remedy (as opposed to the character of the jurisprudence), it is wholly irrelevant to this Comment’s argument. The Court also has never needed to reach the Seventh Amendment question for the Sherman Act because the right to trial by jury was found to be “an essential part of the congressional plan.”147Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504 (1959); see also Fleitmann v. Welsbach St. Lighting Co. of Am., 240 U.S. 27, 29 (1916) (“[W]e agree with the courts below that when a penalty of triple damages is sought to be inflicted, the statute should not be read as attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law. On the contrary, it plainly provides the latter remedy, and it provides no other.”).

The Court also has prudential reasons for not explicitly acknowledging the equity character of its antitrust jurisprudence; to do so may well create a moral hazard particularly irksome to textualist majorities. An open acknowledgement of this type of equity jurisprudence would invite lawyers to try and apply the same types of arguments to other statutes. At various points in time the Supreme Court has been receptive to these types of arguments; even then, they proceeded under a “statutory interpretation” heading rather than “equity.”148It is my supposition that textualism is the only actual “statutory interpretation,” and that the “purposivism” or “intentionalism” schools of statutory interpretation would also be better homed under an Aristotelian equity framework. The implied cause of action jurisprudence provides a good example of this;149See generally Cort v. Ash, 422 U.S. 66 (1975). generally speaking, however, the Court has since all but shut the door on this view of statutory law150See generally Cannon v. Univ. of Chi., 441 U.S. 677 (1979).—with the ironic exception of the antitrust laws.

C.     Precedents Wrongly Decided Under an Equity Taxonomy

The main point of this Comment is that antitrust sounds in equity and not law. But because the body of equity jurisprudence has principles and doctrines that come with it, this Comment surveys several Supreme Court precedents in tension with those principles that may be wrongly decided.

For example, under an equity framework, the decision in California v. ARC America Corp.151490 U.S. 93 (1989).looks suspect. ARC America Corp. is a follow-on case asking if the federal bar on indirect purchaser lawsuits also extends to state law.152Id. at 97. The Court held that it does not.153Id. at 105–06.

The Illinois Brick Co. v. Illinois154431 U.S. 720 (1977). indirect purchaser bar itself follows almost directly from equity principles about the traceability of funds in constructive trusts.155See, e.g., Taylor Assocs. v. Diamant, 104 F.3d 293, 296 (9th Cir. 1997); Conn. Gen. Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612, 615 (1st Cir. 1988); see generally 5 Austin Wakeman Scott & William Franklin Fratcher, The Law of Trusts §§ 461–62 (4th ed. 1989); 1 George Palmer, The Law of Restitution §§ 1.3–4 (1978). Logically, there is no sensible reason to carve out a categorical exemption for state follow-on lawsuits; equity’s “all of the circumstances” approach is more than capable of accounting for the federalism concerns.156Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885 (2007) (citing Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49 (1977)).

The necessity of jury trials in antitrust might also be suspect. There is already movement on this front: while the Supreme Court has declared the right to trial by jury “an essential part of the congressional plan,”157Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504 (1959); see also Fleitmann v. Welsbach St. Lighting Co., 240 U.S. 27, 29 (1916). the circuit courts have been more flexible about the essentiality of juries in antitrust cases, even in those involving legal rights. For example, the U.S. Court of Appeals for the Third Circuit found that “[i]n lawsuits of this complexity, the interests protected by this procedural rule of due process carry greater weight than the interests served by the constitutional guarantee of jury trial” and “[c]onsequently” did “not read the seventh amendment to guarantee the right to jury trial in these [antitrust and antidumping] suits.”158In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069, 1086 (3d Cir. 1980).

Looking to the future, one could make a plausible argument for heightening antitrust pleading standards—even beyond what is required after Bell Atlantic Corp. v. Twombly159550 U.S. 544 (2007).—or possibly heightening the standards of proof. Research has shown that the optimal standards of proof in antitrust cases are likely higher than the preponderance of evidence standard.160Murat C. Mungan & Joshua Wright, Optimal Standards of Proof in Antitrust, 71 Int’l Rev. L. & Econ., no. 8, 2022. The logic here flows from the maxim that equity requires clean hands, or that he who seeks equity must do equity. The motivation for the Twombly rule in the first place is partially rooted in curbing litigation abuses.161550 U.S. at 558 (“Thus, it is one thing to be cautious before dismissing an antitrust complaint in advance of discovery, but quite another to forget that proceeding to antitrust discovery can be expensive.” (citation omitted)).

D.     The Rule of Reason is Dead; Long Live the Rule of Reason

By far the most important normative implication of this Comment’s thesis, however, is that the rule of reason and the consumer welfare standard may be quasi-constitutional and a permanent feature of the antitrust laws—notwithstanding any future action by Congress to the contrary.

This claim unfolds in two parts. The first is the idea that drafting antitrust laws, like any other law, contains an inherent tradeoff between over-inclusive generality and under-inclusive specificity.162This is an essential point of Judge Frank H. Easterbrook’s legendary article, The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984). In other words, it is incredibly difficult to write a functioning competition law that is not astoundingly broad in scope.163E.g., Consolidated Version of the Treaty on the Functioning of the European Union art. 102, Sept. 5, 2008, 2008 O.J. (C 115) 47 (banning “abuse of dominance”); see C. Brien Dillon, Criminal Penalties, Section 3 of Robinson-Patman Act—“Dead Horse” or “Sleeper”?, 8 A.B.A. Sec. Antitrust L. Proc. Spring Meeting 112, 120 (1956) (noting the text of the Robinson-Patman Act has an overbreadth issue “comparable to the application of the ‘rule of reason’ to the Sherman Act prohibition against every restraint of trade”).

Because passing legislation is difficult, Congress will likely be biased towards an over-inclusive law that does too much rather than a dead letter that does little to nothing. Some of the current proposed reforms to the antitrust laws working their way through Congress are a perfect example of this. The Competition and Antitrust Law Enforcement Reform Act of 2021 is currently set to amend the already vague Clayton Act section 7 standard from conduct that may “substantially [] lessen” competition to one that queries if conduct “create[s] an appreciable risk of materially lessening” competition.164The Competition and Antitrust Law Enforcement Reform Act of 2021, S. 225, 117th Cong. § 4 (2021).

The problem here is that the already loose language of the antitrust laws only avoids void for vagueness issues because of the external body of case law fine-tuning what are otherwise open-ended prohibitions. As a result, any amendment to the antitrust laws that does not also include some specifying language or some other way to limit the law’s degrees of freedom will end up in the same place: with the Supreme Court adding in the restrictions on Congress’s behalf (or avoiding the exercise by striking the law down as unconstitutionally vague).

This may mean that the flurry of proposed revisions to the antitrust laws—many of which seek to explicitly abrogate the rule of reason and the consumer welfare standard—could prove futile.165See Stigler Ctr. for the Study of the Econ. and the State, Stigler Comm. on Digit. Platforms, Final Report (2019); Jonathan B. Baker, Joseph Farrell, Andrew I. Gavil, Martin S. Gaynor, Michael Kades, Michael L. Katz, Gene Kimmelman, A. Douglas Melamed, Nancy L. Rose, Steven C. Salop, Fiona M. Scott Morton & Carl Shapiro, Joint Response to the House Judiciary Committee on the State of Antitrust Law and Implications for Protecting Competition in Digital Markets, Wash. Ctr. for Equitable Growth (Apr. 30, 2020), https://perma.cc/P32V-ZENK; Tim Wu, After Consumer Welfare, Now What? The “Protection of Competition” in Practice, CPI Antitrust Chronicle (2018); Marshall Steinbaum & Maurice Stucke, The Effective Competition Standard: A New Standard for Antitrust, 87 U. Chi. L. Rev. 595 (2019); Sandeep Vaheesan, The Twilight of the Technocrats’ Monopoly on Antitrust?, 127 Yale L.J. Forum 980 (2018); Elizabeth Warren, Here’s How We Can Break Up Big Tech, Medium (Mar. 8, 2019), https://perma.cc/88GK-WQ6K. This is because the consumer welfare standard is not an external intervention by activist judges, but a natural outgrowth of the Article III equity power that corrects law where law is deficient because of its generality.166U.S. Const. art. III, § 2, cl. 1; see supra Part II.

This is not to say that Congress can do nothing to repeal the rule of reason or the consumer welfare standard. Any antitrust law written with sufficient specificity to provide fair notice of what it prohibits will likely avoid this equitable Catch-22. But the current amendments making their way through committee markup are going in the other direction towards even looser language.167The Competition and Antitrust Law Enforcement Reform Act of 2021, S. 225, 117th Cong. § 4 (2021). As the history of American antitrust enforcement reveals, courts have essentially two options in response: incoherency or extra-textual specification.

Conclusion

The almost universally held belief that the Sherman Act is a “common-law statute” is completely and utterly wrong. It is built on a foundation of sand; a close inspection of the Act’s legislative history reveals no such congressional intent.

It is also wholly inconsistent with how the Supreme Court treats other “real” federal common law. But the Court has not been in the wilderness all of these years; one only needs to place the canonical descriptions of equity next to the Court’s “common-law statute” reasoning to see that Cinderella’s slipper fits. Remember that, as recounted by Justice Story, Aristotle defined “the very nature of Equity to be the correction of the law wherein it is defective by reason of its universality.”168Story, supra note 31, § 3. The antitrust laws could put this quote on a bumper sticker.

Rooting antitrust in equity, rather than common law, offers a coherent explanation for the history of antitrust jurisprudence. An equity taxonomy of antitrust completes the project of adding clarity and self-awareness to the antitrust laws. And the coherence it offers is durable; like the English monarchy, it persists notwithstanding the death of any of its personalities—in other words: “The rule of reason is dead; long live the rule of reason.”

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