Henry Simons favored Procrustean bright-line antitrust rules over judicial discretion

Evidence

Henry Simons—a classical liberal at the University of Chicago—would have generally concurred with the Court: “The problem is that of selecting for proscription certain practices and arrangements, highly useful or essential for restraint of competition, which are not essential or highly useful for the conduct of competitive enterprise… . More narrowly, it is a problem of depriving corporations of powers and privileges which were unwisely granted, have been patently abused, and are quite unnecessary for effective organization or efficient operation and management” (1948, 101). Moreover, by maintaining that unambiguous and unequivocal rules of the game should guide antitrust enforcement, Simons repudiated the use of the rule of reason by the courts. Under the rule of reason, the courts had to determine whether an unreasonable restraint of trade occurred. Not surprisingly, Henry Simons lambasted the rule of reason: “There must be explicit and unqualified repudiation of the so-called ‘rule of reason’” (1948, 58). Simons claimed that the rule of reason granted absurd powers to corporations (pp. 42–43). — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin, 1137

Categorization

• DEFINE: Clarifies that ‘rule of reason’ meant courts judging whether each restraint was unreasonable, which Simons rejected in favor of fixed rules — and shows an early Chicago figure siding with the courts against what became the Chicago antitrust paradigm.
• XREF: Contrasts sharply with the later Chicago School antitrust position (Bork, Easterbrook) that favored cost-benefit analysis of practices; marks early Chicago’s interventionalist streak. — connects to: Simons proposed nationalizing concentrated industries to promote, not limit, free markets — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin: The Making…, 721; Rigid per se rules would prevent antitrust law from resisting future statist experiments — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin: The Making…, 1138; Certainty-driven per se rules threatened antitrust’s common law flexibility — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin: The Making…, 1138

Broader Connections

• Certainty-driven per se rules threatened antitrust’s common law flexibility #contradicts (0.90) — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin, 1138
• Rigid per se rules would prevent antitrust law from resisting future statist experiments #corroborates (0.85) — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin, 1138