COMMON LAW, STATUTE LAW, AND THE THEORY OF LEGISLATIVE CHOICE: AN INQUIRY INTO THE GOAL OF THE SHERMAN ACT

Although the Sherman Antitrust Act is more than a century old, debate continues over its goals. In contrast to what many have argued, I contend that the Act's main goal is to maximize economic efficiency, rather than the welfare of consumers. The Sherman Act is a modest extension of the common law, which the “Law and Economics” literature indicates moves towards economic efficiency. Further, unlike the Interstate Commerce Act of 1887, Sherman Act decisions are made by courts, not a regulatory agency. Thus, the theory of legislature choice also implies that the goal of the Act is to maximize economic efficiency.