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Constitutional approach, Statutory approach, Sherman Act, Federal courts, Cartels, Monopolization, Antitrust


This Article will demonstrate the superiority of the statutory approach for producing more stable and consistent antitrust law. Part I details the development of the constitutional approach to antitrust, demonstrating how the rise of the pragmatic and instrumentalist view of law led to the displacement of the original statutory approach to antitrust. Part II illustrates that the constitutional approach fundamentally cannot produce workable antitrust law. It summarizes both the doctrinal disarray that continues to plague each major area of antitrust law and the irreconcilable policy prescriptions of the contending antitrust "schools." Part III presents an alternative, statutory approach to antitrust that employs realistic statutory construction and legal rulemaking techniques to curtail excessive judicial discretion in antitrust adjudication. Such an approach would restore the traditional rule of law and political legitimacy values displaced by the constitutional approach. This Part details the techniques that I have previously employed to produce a workable legal standard for resolving all cases arising under Section 1 of the Sherman Act, and it details the agenda for extending the statutory approach to the remaining antitrust provisions.

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Tulane Law Review