Congress deliberately delegated antitrust law creation to the courts via broad statutory language
Evidence
Judges created much of American antitrust law on a blank slate, for example, when they were forced to interpret the Sherman Antitrust Act of 1890, a statute whose main operative provision simply prohibits “[e]very contract, combination, … or conspiracy, in restraint of trade or commerce.”’ In enacting such a law, Congress’s use of imprecise language was not a matter of carelessness in drafting. Congress plainly knew what it was doing, and it knew how to use narrow and precise language when it wanted to. In writing the Sherman Act in broad and indeterminate language, therefore, and in thus intentionally avoiding concrete language and easily understood rules, Congress was instructing the courts to create, in commonlaw fashion, pretty much the entire body of antitrust law. — Frederick Schauer, Thinking Like a Lawyer, 273
Categorization
- XREF: Connects to the standing-interest theme of small acts of decorum toward corpses vs practical logic — here delegation of rule creation reflects a different logic than precision. — connects to: Formalism might be seen not as embodying an embarrassingly crude understanding of communication, but as a sensible and highly pragmatic response to institutional limits of generalist judges and institutional capacities of Congress. We believe that in considering these debates, an institutional focus is helpful, not because it always resolves them, but because it shows what many disputes are really about, and because it casts light on central questions that might otherwise be obscured. At a minimum, we urge that an appreciation of institutional capacities and dynamic effects is a necessary part of any theory of legal interpretation. A theory that neglects those issues is seriously incomplete. We also hope that future debates about interpretation will focus on institutional issues, where it remains possible to make a great deal of progress, not least by examining empirical issues, identified below, on which much remains to be learned.; Legal major premises derive authority from constitutional text or statutes — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 242; Certainty-driven per se rules threatened antitrust’s common law flexibility — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin: The Making…, 1138 (+4 more)
Related
Broader Connections
- Formalism might be seen not as embodying an embarrassingly crude understanding of communication, but as a sensible and highly pragmatic response to institutional limits of generalist judges and…
#corroborates(0.70) - Legal major premises derive authority from constitutional text or statutes
#contradicts(0.55) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 242