John M. Newman (University of Memphis – Cecil C. Humphreys School of Law) has posted The Antitrust Jurisprudence of Neil Gorsuch on SSRN. Here is the abstract:
In January 2017, President Donald Trump nominated Judge Neil M. Gorsuch to serve on the U.S. Supreme Court. Like Justice Stevens before him, Gorsuch’s primary area of expertise is antitrust law. Like Stevens, Gorsuch both practiced and taught in the area before joining the bench. As a Tenth Circuit judge, Gorsuch penned multiple substantive antitrust opinions.
In light of Gorsuch’s unique antitrust expertise, examination of those opinions can shed unique light on his judicial proclivities. This essay provides the first in-depth prescriptive and descriptive analysis of Gorsuch’s antitrust jurisprudence. While it reveals (perhaps unsurprisingly) a great deal of sophistication vis-à-vis antitrust doctrine, it also identifies several areas for improvement.
This essay explains that as a Tenth Circuit judge, Gorsuch effectively expanded upon—even rewrote—existing precedent, including Justice Scalia’s memorable opinion for the majority in Trinko. For normative force, Gorsuch’s antitrust jurisprudence at times rests upon logical fallacies and an unduly one-sided error-cost framework. This essay critiques that reasoning. In response, it offers prescriptive suggestions for jurists deciding future antitrust cases, with an eye toward producing a more transparent, coherent, efficient, and welfare-maximizing body of antitrust law.