Why Copperweld Was Actually Kind of Dumb : Sound, Fury, and the Once and Still Missing Antitrust Theory of the Firm?

Since even before Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), it has been thought that antitrust needs some "theory of the firm" to inform its application of a "single-entity" defense in Sherman Act section 1 litigation. Not only is that sense mistaken, it is emblematic of the deep misdirection of contemporary antitrust. It shows just how far antitrust has forgotten that it is a law, a practical tool to implement policy choices made through our system of government. Much too much of the time, it seems to fancy itself rather an abstract policy seminar to be dabbled in by the federal bench and its academic support staff. The point to be made specifically in this paper is one small part of that argument. Copperweld has generally been thought of as a watershed, a decision so obviously right and so reasonable in its analysis that it is not thought about very critically. But if it was so wise, one might have thought that single-entity decisions in the lower courts would become more principled and more coherently linked to clearly stated goals than they had been before. At the very least, they should seem different than the pre-Copperweld cases. And yet, they do not. Single-entity cases before and after Copperweld are largely indistinguishable, setting out the same ad hoc, subjective, and usually pretty shallow reasoning, with no obvious connection drawn to specified goals. The paper takes this fact as evidence that engaging in this sort of complex institutional analysis at such an early stage -- often enough at some point of early summary disposal, with little or no discovery -- is unwise