August / September 1999

United States: Supreme Court’s opinion in horizontal restraints case muddies the waters

01 August 1999

The Supreme Court’s CDA opinion generated immediate controversy in the antitrust bar, not least because of the fact that the vigorous dissent in the case was authored by Justice Stephen Breyer, one of the Court’s recognized antitrust scholars. A former general counsel of the FTC commented on this aspect of the case as follows: 'It is an unusually disappointing opinion. Simply as a matter of judicial craftsmanship, it is not of the quality for which we look to the Court. Any objective observer would have to conclude that Justice Breyer’s opinion was far and away the better of the two, whether measured in terms of analytical power, understanding of antitrust, or quality of writing.'