How Should Competition Policy Be Taught?

Josh Wright —  28 April 2008

Harvard’s Einer Elhauge answers the titular question in the newest issue of Competition Policy International, in response to a review of his new textbook Global Antitrust Law and Economics (with Damien Geradin) at the newly revamped Global Competition Policy website.   The response essay is less about the particulars of the book than it is about what the fundamental goals of modern competition law courses are and should be.  The debate takes the form of teaching doctrine and procedure vs. economic analysis with Elhauge defending the latter.  Here’s an excerpt from Elhauge driving home the point:

John Kallaugher argues that the “primary goal” of a competition law course should not be “to help students understand and apply the analytical model,” but rather should be “vocational training.” On this, I could not disagree more: law schools should aspire to being much more than vocational trade schools whose job is to just teach doctrine. This would be so even if we adopted the narrow careerist perspective that we did not care whether students understood the deeper theoretical and policy issues about competition law, as long as we taught them skills they could use as practicing lawyers. The reason is that good lawyering depends on understanding the underlying analytical and economic models. Lawyering without such an understanding is bad lawyering, because formalisms that lack firm grounding in functional theories are unhelpful and unpersuasive in practice. The lawyer who argues nothing but formalisms and spins of case quotations will lose to the lawyer who offers a functional theory that can make economic sense of the doctrine in a way that adjudicators find attractive. The lawyer who does not understand the underlying antitrust analysis and economics cannot effectively cross examine expert witnesses or understand the key issues in her own case, and the adjudicator who does not understand the underlying ideas will make bad decisions that worsen market performance and harm consumer welfare.

I inserted the bolded portion.  This is a lesson I try to impart to my antitrust students and one that I hope that they take to heart by the time the semester is over.  I think Elhauge has this exactly right.  Check out the essay.