Teaching Antitrust

Cite this Article
Josh Wright, Teaching Antitrust, Truth on the Market (September 06, 2008), https://truthonthemarket.com/2008/09/06/teaching-antitrust/

I’m two weeks into the semester here at UT, and the antitrust course.  I’ve made a few changes to the course this year.  Specifically, I’m using the new 2nd edition of the Gavil, Kovacic and Baker.  So far so good on that front on adjusting to the new edition.  Its an excellent textbook.  In large part its advantage is that it outpaces the other books in inclusion of important non-SCOTUS cases, coverage of agency practice, and economic content.  I want to talk about two changes I made last year and am also experimenting with this year and see what other antitrust law profs and/or students think.

The first is starting the course with a few lectures of straight economics.  This year, its two 705 minute lectures.  I’m always a bit afraid that this will scare some students off.  I do promise no calculus!  The lectures also assume no economic background.  But the truth of the matter is that I think its just not possible to teach modern antitrust law and agency practice without some basic economics.   I think integrating important economics concepts adds significant value to the education the students receive in the sense that it will make them better antitrust lawyers.  With the degree of integration of economics and antitrust in modern doctrine, the bottom line is that its just too important not to cover basic economics.

Antitrust is fairly unique in its wholesale incorporation of a second discipline into the substantive doctrine (by the way, this is also another advantage of the Gavil, Baker, Kovacic book — it includes some useful economic exercises, sophisticated but accessible explanations of economic concepts, plus graphs and other material on important economic issues).  The payoff, in theory, of doing it early is that we’ve discussed some basics early that we will return to repeatedly throughout the semester.  Hopefully, we’ll be able to focus on applications of these concepts later in the semester without re-learning the basics, thereby saving some time to get into some more interesting doctrinal complexities and policy issues.  I imagine some other antitrust profs choose to teach some basic concepts as they go.

Others might do the same sort of economics bootcamp early in the semester.  We spend one lecture of demand principles and another on cost/supply concepts.  The focus is conceptual and not mechanical or about memorization.  For instance, we spend most of the demand lecture trying to understand some basics about what demand curves are, what their shape means, and how to think about elasticities.  On the cost side, we spend a lot of time learning about differences between fixed and marginal costs, average cost and concepts like economies of scale, diminishing marginal returns, and minimum efficient scale.   This is my second year starting off this semester with some basic economics and I’m pretty sure I’m going to stick with it.  Of course, the dynamics with this at George Mason were a bit different because we include a basic economics course in our mandatory 1L curriculum.  But I thought the lectures went relatively well.  At least, I didn’t see any dramatic decreases in enrollment.  Not yet anyway.  But its early.  How do other antitrust professors incorporate economics into their lectures?  Do students prefer learning the economic material early and then having it reinforced through applications throughout the semester or would you rather learn it as you go?  Does knowing this material is on the syllabus scare off students?

The second innovation I’m experimenting with is something I’ve never heard anybody else do, but it might be more common than I think.  I cover horizontal mergers first.  I stole borrowed this idea from a highly respected practitioner at top antitrust practice who told me that he would cover mergers first if he were ever to teach antitrust law.  While this creates some jumping around the textbook, which students never like, I think there are some real pedagogical advantages.  Let me make the case here.  First, the primary advantage is that doing mergers first allows the class to immediately jump into economic and legal concepts that will be used throughout the semester: market definition, demand elasticities, entry, efficiencies, burden-shifting analysis and balancing, and factors conducive to collusion (in coordinated effects cases) to name a few.  This allows us to reinforce some of the Week 1 while getting some merger doctrine under our belt.  Second, mergers are probably the most practically important area of modern antitrust analysis.  Leading with it seems right.  I spend 4-5 lectures on mergers and by putting it early, I think, calls attention to the importance of the topic if not only symbolically.  Third, I think there are some natural synergies to the sequence of economics, followed by mergers, followed by horizontal restraints.  Specifically, we’ll have already cover coordinated effects stories and factors that facilitate collusion in mergers when we get to collusion and horizontal restraints.  We’ll also have under our belt a basic understanding of how the rule of reason works in the horizontal restraint context — at least in terms of the basic structure of prima facie burdens and efficiency arguments.  Other than the downside of having to jump around the textbook, I’ve never heard a compelling reason for the standard sequence of material (typically leading with cartels).  So, theres my case for starting with mergers.  Are you sold?  If not, what costs of this approach am I missing from the pedagogical perspective?  What about for the students?  Do any other antitrust professors lead with mergers?

Comments appreciated!