Unraveling the Chicago/Harvard Antitrust Double Helix: Applying Evolutionary Theory to Guard Competitors and Revive Antitrust Jury Trials

Thomas J. Horton, University of South Dakota School of Law

Abstract

This paper addresses the Supreme Court's current favorable view of monopolies and strong antipathy toward antitrust jury trials. The current Chicago/Harvard philosophical antitrust double helix is built around the ideas that monopolies are generally efficient and procompetitive while juries are unable to grasp complex antitrust economics. Building upon evolutionary analyses in previous papers, this article recommends a new philosophical antitrust double helix that will generate increased enforcement of and compliance with the language and spirit of sections 2 of the Sherman Act and 7 of the Clayton Act. The article recommends that we reform the misappropriated and misapplied "protect competition, not competitors" cliche, and return to protecting competition by guarding competitors against unfair and malicious predatory conduct. We also should begin returning monopolization cases to juries, and allow jurors to fully consider evidence of intent, purposefulness, and fairness.