Justice Oliver Wendell Holmes famously wrote in his dissent in an important early antitrust case, Northern Securities Co. v. United States, that “[g]reat cases like hard cases make bad law.” Holmes went on to explain that great cases are so-called “not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” He went on to say that those cases exert “a kind of hydraulic pressure which makes what . . . was clear [appear] doubtful, and before which even well-settled principles of law will bend.” He appears to have been correct some of the time but not necessarily most of the time.
This essay, however, considers a converse but related question: Do bad antitrust decisions, as based on their facts, sometimes make good law? That is, do wrongly decided antitrust cases, when considered on their merits, sometimes have a lasting impact on the law even though the decision by most accounts should simply be overruled? At first glance, our system of stare decisis, in which correct decisions have precedential value and wrong decisions are simply overruled, would seem to not tolerate such a result.
The question is germane because some old-dog antitrust decisions, much maligned and probably wrongly decided even way back when, maintain significant currency in contemporary antitrust parlance. These cases are oft-cited and relied on now, even given their very shaky pedigree. They are cases that initially seem ripe for overruling but, for reasons I will explore, probably never will be. Thus, the question is, are bad antitrust cases actually responsible for making good law? If so, why do cases in such disrepute on their merits have such staying power, particularly when so much early antitrust precedent is simply ignored today? Two cases, United States v. Aluminum Co. of America (Alcoa) and Brown Shoe Co. v. United States, stand out as examples of this phenomenon.
C. Paul Rogers III, Why Do Bad Antitrust Decisions Sometimes Make Good Law? The Alcoa and Brown Shoe Examples, 71 SMU L. Rev. 97 (2018)