Textualism as an Ally of Antitrust Enforcement : Examples from Merger and Monopolization Law

Advocates of vigorous antitrust enforcement should not fear the rise of textualism. The Sherman Act, Clayton Act and FTC Act were all enacted as a result of the progressive movement. These laws were written in large part to protect the interests of consumers against possible exploitation by trusts, cartels, monopolists, and large merging firms. It should not be surprising that textualism’s focus on the precise words of these statutes should help the cause of consumers and vigorous antitrust enforcement. Consider the original words in Section 2 of the Sherman Act, and also some specific words that were not used in the statute. Section 2 makes it unlawful for any person to “monopolize, or attempt to monopolize . . .. .” There is nothing in the statute, no language in Section 2, that requires anticompetitive conduct. No words carve out an exception for an efficiently acquired monopoly. Consider also Section 7 of the Clayton Act which prohibits mergers the effect of which “may be substantially to lessen competition or to tend to create a monopoly.” The statute uses “may” instead of other terms that sometimes are used in current case law, such as “is likely to” or “will.” Textualist analysis shows that “may” demands a tougher approach to merger enforcement than these alternatives. The plain words of Section 7, moreover, do not contain or permit an efficiencies defense, at least for mergers that may “tend to create a monopoly.” Because the statute contains no such efficiencies defense, textualist analysis means that courts erred when they created one