The Nomos and Narrative of Matsushita

October 4, 2011

Twenty-one years ago, Robert Cover left an indelible mark on legal scholarship with his epic tale of world formation and development, Nomos and Narrative. He posited the idea that our culture consists of a multitude of insular communities (nomoi), each of whose experiences is guided by those texts and events (narratives) that give its legal precepts normative meaning, thereby connecting each community’s vision of reality to its ideal. Occasions arose, however, where different community’s visions of the ideal could not be contained within each community alone and thus came into conflict. Resolution required reconciliation of those narratives that provided each nomos with normative meaning. This entailed respecting the insularity of each nomos as much as possible but, where need be, recognizing that one vision was normatively better than another and redeeming the lesser from its fall from grace.

Cover’s work specifically concerned the battle between civil rights norms and religious liberty ones in the early 1980s. But Cover’s central idea—the relationship between nomos and narrative—need not be limited to the specific struggle that confronted him. In fact, his work aids understanding of one of the most important (and confusing) issues in antitrust: when to limit the range of permissible inferences from circumstantial evidence at the summary judgment stage. Studying the history of how the antitrust summary judgment standard developed, this Article discusses how antitrust has its own nomoi (substantive sub-worlds) and redemptive narrative (consumer welfare) interacting with one another and how, in one nomos—oligopoly parallel pricing cases—some circuit courts have arguably erred by overapplying deterrence concerns that originated as part of the consumer welfare narrative.

March 2005

No. 4