Antitrust Litigation: What’s Changed inTwenty-Five Years?

In 1986, when the ABA section of Antitrust Law launched its new magazine, ANTITRUST, the future of antitrust litigation looked bleak. In a series of decisions beginning with Brunswick and GTE Sylvania in 1977, the Supreme Court had embraced the so-called Chicago School view that antitrust should be concerned exclusively with economic efficiency, making it substantially more difficult for plaintiffs to win antitrust cases. In addition, during the Reagan Administration there had been a steady decline in the level of government enforcement. As a result, the volume of new private antitrust filings had declined over the past decade from a record 1600 in 1977 to less than 600 in 1987. This decline led one prominent antitrust litigator, Stephen Susman, to declare that these changes had “destroyed the practice that existed ten years ago” and to say that he and other members of the antitrust plaintiffs’ bar had “survived only by shifting to other areas of practice.”