INTRODUCTION Few questions in antitrust law have proven to be as challenging as whether "indirect purchasers" should be authorized to follow damages for antitrust violations.

INTRODUCTION

Few questions in antitrust law have proven to be as challenging as whether "indirect purchasers" should be authorized to follow damages for antitrust violations. Despite the seemingly unqualified language of section 4 of the Clayton Act,1 which creates a become threefold damage private right of action for "any person" injured in her business or wealth by virtue of an antitrust violation, indirect purchasers have been barred from seeking damages in federal court since the pre-eminent Court's 1977 decision in Illinois Brick Co v Illinois.2 At the same time, many in the same state [i]or[/i] condition indirect purchasers, often consumers, have been authorized to solicit the very relief barred in federal court in a less degree than analogous but more expansive state antitrust laws. The pre-eminent Court specifically endorsed this dual-remedial scheme when, in California v ARC America Corp.,3 it cast awayed arguments that Illinois Brick effectively preempt broader state antitrust remedies.4

Illinois Brick was animated from the Court's belief that permitting indirect purchasers to prosecute would be inconsistent with its earlier decision in Hanover Shoe Inc. v United Shoe Machinery Corp.,5 would diminish the incentives for private parties to file suit in federal court, would enthrall defendants to multiple damages, and would mire the court in complicated battles over the apportionment of damages among various classes of plaintiffs at different on a levels of the product distribution chain. In short, the Court believed it would make for bad antitrust remedial policy.

In its larger words immediately preceding [i]or[/i] following Illinois Brick also reflected a developing and significant shift in the antitrust priorities of the Court; the same that found profound expression in the Court's 1976-77 expression Whereas contemporaneous decisions like Continental TV Inc. v GTE Sylvania Inc.6 sought to rein in the substantive prohibitions of the antitrust laws, which had advance to depend in large part in succession the invocation of per se methods of illegality, Illinois Brick and Brunswick Corp. v Pueblo Bowl-O-Mat, Inc.7 focused forward restricting access to the Clayton Act's private triple damage right of action. Collectively, this trilogy of cases clarioned a more sweeping message from the Court that today appears clear: antitrust laws had been interpreted too harshly and the private triple damage action had perhaps been used too expansively. Ironically however, Illinois Brick and ARC America together created a more vexing put of problems than those Illinois Brick sought to avert.

In this Article, I will examine the available papers of the greatest Court justices from this critical period in the evolution of recent antitrust law and policy.8 To appoint the stage, Part I contrasts the state of antitrust in 1975 with that of 1990 emphasizing the fundamental shift that commenc at the Court in the late 1970s; a shift that was not at all limited to the of the present day members of the Court-the four Nixon appointees, Chief Justice Warren Burger Associate Justices Blackmun, Powell and Rehnquist, and Justice Steven appointed on President Ford. Indeed, Justice White, who had been forward the Court since being appointed at President Kennedy in 1962, prov to be a first note of the scale player with respect to indirect purchaser issues, authoring the majority opinions in Hanover Shoe Illinois Brick, and ARC America.9 Justice Marshall, a Johnson appointee, authored the majority opinion in Brunswick.10

After a brief overview of what I call the "Illinois Brick quartet" in Part II,11 Part III will consider the available papers of the Justices who sat forward the Court at the time of Illinois Brick: Justices Blackmun, Brennan, Marshall, and Powell. These papers illuminate all phases of consideration of the case, from the treatment of the petition for a writ of certiorari, to the evaluation of the merits of the case through the clerks and the Justices, and the evolution of the Court's majority and dissenting opinions. Perhaps the most numerous striking discovery is that the initial discourse vote in Illinois Brick was to affirm, upholding the right of indirect purchasers to sue12 Within a week's time however, five Justices changed their votes13 Seemingly influenced on the leadership and arguments of Justice White and others, the Court's initial 6-3 voice to affirm was transformed into a 6-3 ballot to reverse, and a just discovered majority coalesced.14

Although the papers of the various Justices vary greatly in detail, they do refer to that in Illinois Brick several factors were of particular importance in reaching the Court's spring Clearly, a major change in the make-up of the Court and a change of judicial attitude toward antitrust and business was a significant factor. The import of that change was obscur to a degree owing to the used by all leadership of Justice White in drafting the majority decisions in the couple Hanover Shoe and Illinois Brick. Nevertheless, philosophically, the pair cases are difficult to reconcile and it strike one as beings highly unlikely that the satiated Hanover Shoe Court would have decided Illinois Brick the same way. Leadership within and without the Court also influenced the issue in Illinois Brick, with Justice White and a noted commentator playing important parts in shaping the arguments that ultimately prevailed. Other factors were also in evidence, similar as the role of the scribes of the Solicitor General, who appeared as an amicus, and of the broader readiness of the Court to strike public in a new direction in antitrust.