The evolution of judicial standards: evidence from litigated merger trials

Jeffrey T Macher, John W Mayo, David E M Sappington and Mark Whitener

The Journal of Law, Economics, and Organization, 2026, vol. 42, issue 1, 1-33

Abstract: A popular narrative suggests that, in the wake of the rise of the Chicago School, the judiciary has grown increasingly lax, making it difficult for antitrust agencies to successfully challenge mergers in court. We develop a theoretical framework to yield propositions regarding merger challenges, settlements, and outcomes under varying judicial standards. We then undertake an empirical investigation of all mergers, challenges, and litigated outcomes in the United States over 1982–2021 to test for the presence of shifting judicial standards. Contrary to the popular narrative, we find evidence that judicial standards have become increasingly pro-enforcement over the past four decades.

Date: 2026
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