In Memoriam: Justice Scalia’s Antitrust Legacy (1936-2016)

This foreword is an In Memoriam of Justice Scalia.

In his 30 years on the Supreme Court, Justice Scalia wrote only three opinions for the Court based directly upon the Sherman Act. In other cases involving antitrust claims, he wrote opinions for the Court resolving the claims based not upon the Sherman Act but upon the Federal Arbitration Act, the Natural Gas Act, the McCarren-Ferguson Act, which gives the “business of insurance” immunity from the Sherman Act; and Federal Rule of Civil Procedure 23, which sets the requirements for bringing a class action. Although the Justice’s record in Sherman Act cases is sparse, it has been extremely influential. In Business Electronics Corp. v. Sharp Electronics Corp. (1998), he made it clear that a vertical restraint of trade is not per se illegal unless it

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  • U.S. Court of Appeals for the District of Columbia Circuit (Washington DC)


Douglas H. Ginsburg, In Memoriam: Justice Scalia’s Antitrust Legacy (1936-2016), May 2016, Concurrences N° 2-2016, Art. N° 79478, p. 8

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