Professor Werner presents a chronological study of the antitrust dissents authored by Justices Harlan and Stewart in an attempt to identify the minority rationale which may guide the Court's future antitrust decisions. Analyzing these dissenting opinions against the economic criteria of industry structure, conduct and performance, Professor Werner concludes that the dissenters focus primarily on industry performance while showing some concern for the structure of the industry. The author views the dissenters as strict constructionists and believes that their conservative economic orientation may emerge as the antitrust philosophy of the Nixon appointees to the United States Supreme Court.
Ray O. Werner,
The Economics of the Joint Antitrust Dissents of Justices Harlan and Stewart,
48 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol48/iss3/3