Sen. Herb Kohl (D-Wis.) has been a vocal critic of several recent Supreme Court rulings on antitrust law. Today, he wanted to know whether Elena Kagan agrees with him, but he didn't get far.
Kohl, the chairman of the Senate's antitrust subcommittee, read off a list of rulings he objected to, including those in Leegin Creative Leather Products v. PSKS, which changed the standard for reviewing vertical price-fixing, and Bell Atlantic v. Twombly, which changed the pleading standard in antitrust cases.
“Many are concerned that the cumulative effect of these decisions is to hurt consumers,” said Kohl, who inherited his family’s department store chain.
Kagan said it’s up to the justices to find a balance between long-standing antitrust precedent and changing views on the economic impact of antitrust laws.
“There’s some question, to be sure, about how new economic understandings should be incorporated into precedent,” she said. “On the one hand, it’s clear that antitrust law needs to take account of economic theory and economic understandings, but it needs to do so in a thoughtful way.”
Pressed by Kohl to give a view on the Leegin decision, Kagan said she would not “grade” the ruling and she did not elaborate on how the Court should determine a proper balance in antitrust cases.