Merrick Garland's Volume 96 Article: Antitrust and State Action
On March 16, President Obama nominated Merrick B. Garland, the Chief Judge of the D.C. Circuit, to fill the vacancy on the Supreme Court.
Among Chief Judge Garland's many accomplishments is his publication of an Article in Volume 96 of the Yale Law Journal. In Antitrust and State Action: Economic Efficiency and the Political Process, he criticized judges and scholars who sought to use antitrust law as a means of "preempt[ing] . . . economically inefficient state regulations." "[T]he revisionist proposal," he argued, was "little more than a return to the era the Court left behind when it repudiated Lochner v. New York. The substitution of 'antitrust' for 'due process' and 'economic efficiency' for 'liberty of contract' does not make the assault on democratic politics any more palatable."
Chief Judge Garland also observed, however, that in certain cases "political processes at the state and national levels give conflicting signals." For this proposition, Justice Kennedy cited the Article in a recent case. See North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101, 1111 (2015) ("[T]he States' greater power to [regulate] does not include the lesser power to negate the congressional judgment embodied in the Sherman Act through unsupervised delegations to active market participants.").
Chief Judge Garland's Article is available here.