In a nutshell, Director and Levi argued that their understanding of economics did not justify the applications of the antitrust laws in the 1940s and 1950s. They disagreed with what they labeled “the drive for certainty and automaticity” on the part of the courts—particularly in the form of the incipiency doctrine that aimed to catch questionable anticompetitive conduct in its early stages. For Director and Levi, a dangerous implication of the drive for certainty and the reliance on numerous per se rules to help achieve greater certainty would result in the enfeeblement of the common law foundations of antitrust law, thereby precluding the antitrust laws from weathering future possible NRA attempts.

Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin, loc. 1138