The Clayton Act Cipher: Text as an Antitrust Strategy

As federal antitrust enforcement has adopted its most aggressive stance in decades, the fate of billions of dollars’ worth of economic activity rests on a few short statutory phrases enacted generations ago. The government officials who have proposed expanding antitrust enforcement have not justified their efforts through the difficult work of parsing the original meaning of these statutory texts. Nor have the targets of their scrutiny shielded themselves by asserting that statutory meaning. Instead, antitrust regulation and litigation have assumed that the text of these laws does not provide as clear or relevant a standard as do precedent, policy, and other concerns. Rejecting that stance, this Article demonstrates the importance and practicality of antitrust textualism by engaging in the first dedicated interpretation of the Clayton Act of 1914, as amended by the Robinson-Patman Act of 1936 and Celler-Kefauver Act of 1950. These laws rest at the center of contemporary efforts to expand antitrust enforcement, especially merger policy. This Article shows that contemporaries of the Clayton Act would have originally recognized its terms as bearing a meaning similar to the foundational Sherman Act of 1890. This understanding becomes apparent when the language of the Clayton Act is juxtaposed with state statutes that employed the same or similar language. This Article then verifies that meaning by contextualizing the Clayton Act within its contemporary competition policy. Tracking the Act’s amendment further shows that, contrary to the prevailing interpretation based upon legislative history, the Robinson-Patman and Celler-Kefauver Acts did not significantly transform that original meaning. This Article then demonstrates how to apply this textual detective work in practice. Placing the historical meaning of these statutes at the center of modern practice would not generate drastic upheavals in policy. At the same time, textual analysis remains critical to evaluating whether antitrust law permits the novel theories and initiatives of modern antitrust enforcers. This Article closes by illustrating how regulators and litigants can use the text to evaluate several core contemporary initiatives: replacing consumer welfare as the primary objective of antitrust law, resuming use of the Robinson-Patman Act to fight price discrimination, and expanding merger enforcement.