"Across a wide variety of areas, a theme is this Court has decided to cut back people's access to courts," said constitutional law scholar Pamela Karlan of Stanford Law School.
"If you look at this term and back a term or two, the Court wants to make sure the lower courts read the antitrust law and apply it in a way that's designed to err on the side of ensuring the pro-competitive conduct is encouraged," he said. "If you go back 30 years in antitrust jurisprudence, you would certainly say the balance was the other way."
Since 1979, the Court has been slowly chipping away at old rules to change that presumption, added Smith.
Smith and others also believe the decisions this term, in particular, reflect the justices' increasing belief that competition issues are better resolved in the marketplace than in the judicial system.
"You see expressly and implicitly in their opinions the concern that antitrust litigation is a long and costly process for all parties, including the courts," said Smith.
Or, he added, as in the term's case involving a conflict between antitrust and securities regulation, a regulatory body is the better resolution.
In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., No. 05-381, a unanimous Court held that a two-part test for recovery on a predatory-pricing claim also applies to a predatory-buying claim because they are analytically similar.
Leegin successfully sought to overturn the per se rule, which the high court had announced in a 1911 decision, Dr. Miles Medical Co. v. John D. Parks & Sons, 220 U.S. 373, and replace it with the so-called rule of reason.
Cavanagh agreed, adding, "Twombly is going to enable courts, in antitrust and in cases like civil rights, to get rid of cases on the pleadings because they think they're thin rather than give plaintiffs an opportunity to get discovery."
Credit Suisse held, 7-1, that securities laws preclude antitrust liability in an antitrust class action against a syndicate formed to underwrite initial public offerings of high-tech companies.
