Understanding the Antitrust Jurisprudence of Justice Gorsuch: Conwood’s Continuing Influence

Jeffrey Klenk and Jeffrey Armstrong discuss Supreme Court Justice Neil Gorsuch’s antitrust opinions, familiarity with economic theory, and judicial philosophy. The authors write about Gorsuch’s references to the Conwood case, which sparked new ways of thinking about and testing for alleged anticompetitive conduct in a variety of cases.

A review of newly appointed Supreme Court Justice Neil Gorsuch’s antitrust opinions shows that his jurisprudence with respect to antitrust issues is well within mainstream legal thinking and that he is keenly familiar with the economic theory underpinning such cases. In fact, a careful reading of his most prominent antitrust decision, Novell, indicates that his judicial philosophy is informed not only by economic theory but also by his days in private practice as an antitrust attorney. Specifically, in Novell, Gorsuch makes reference to Conwood, a case that still stands as one of the largest antitrust damages awards ever and in which he was one of the lead attorneys for the plaintiff. Gorsuch’s use of Conwood as an example of anticompetitive conduct and his involvement as an attorney in that case suggests his experience on that matter continues to influence his approach to antitrust and that he understands the challenges which antitrust plaintiffs often face. Conwood also sparked new ways of thinking about and testing for alleged anticompetitive conduct in a variety of cases, some of which could percolate up to the Supreme Court during Gorsuch’s tenure.

Read the article.