When I came onto the job market in 2004, a number of advisers told me that I should not market myself as an “antitrust guy.” The prevailing view on the job market was that “antitrust was dead.” This perception was conveyed one way or another in interviews or conversations with folks in the legal academy. The conventional wisdom was that nothing exciting had happened in the antitrust world since the Reagan era. On top of that, the story goes, there were few important questions that remained to be answered and not only minor contributions left around the margins. I ignored the advice at the time thanks to an uncle (and antitrust lawyer) who had turned me on to economics and antitrust in high school. Truth be told I really didn’t want to study or write about anything else at the time and really wasn’t interested in saying otherwise.
Five years later it is my impression that outside the antitrust community this conventional wisdom still prevails. Antitrust, to many, is viewed as a “luxury” which I take to mean that a serious law school can get along quite fine without having a faculty member whose primary teaching and research interests is antitrust. Antitrust, they say (I paraphrase and oversimplify but not by much), is in low demand in the legal academy because with the exception of a few big names cases from time it’s a field of little practical importance, there is not tremendous demand from students, and it’s a less intellectually interesting field than other areas of commercial law that have thus far had less exposure to economic and empirical thinking.
To the extent that this is the conventional wisdom in the legal academy (and I’ve heard it often enough to suggest that its at least a widely held view), it is mistaken and has been for the last decade or so. And that’s not just the case at George Mason where law and economics is a research and teaching priority and where antitrust has had fairly stable and relatively high demand. For several reasons, contrary to the conventional wisdom I hear from the legal academy, it is an incredibly exciting time to practice, think about, and write about antitrust issues. I obviously can’t make the comparisons from firsthand knowledge, but I suspect that right now is one of the most intellectually active antitrust eras in history. I suspect that most antitrust practitioners and academics would agree with that proposition, perhaps with quibbles over whether it ranks at the top of the list or somewhere like second or third. I don’t want to get bogged down in that debate here. But when I explain to colleagues how exciting of a time it is in antitrust right now (and especially as an antitrust academic) the response is normally surprise more than anything else. The interesting point though is not that antitrust has really been around and in a growth phase for the last decade or so. Rather, the more interesting point to me is that the legal academy appears to finally be catching on to these changes.
While my sense is that most TOTM readers have some familiarity (or at least interest) in the field and a sense of the growth over the past decade, the frequent expression of surprise and interest from colleagues outside the antitrust community suggests that a post explaining these developments might be of general interest. First, let me start with some evidence that the antitrust is no longer should be considered a law school luxury and that the legal academy is starting to catch on this new state of affairs. Then I’ll talk a bit about some underlying causes.
THE LEGAL ACADEMY FINDS ANTITRUST AGAIN
Recent antitrust movements on the lateral market, and especially at highly ranked schools, are one type of evidence that the field is attracting attention. In just the last year, consider the recent moves of Dan Crane to Michigan, Howard Shelanski to Georgetown, Christopher Leslie to Irvine, and Abe Wickelgren to Texas (and I might be missing others). On top of those moves, there are several other schools in the top 20 and top 10 that either have current visitors, are considering various antitrust candidates for the future or have scheduled visits. For this reason, my sense is that 2009 is not a one-time phenomenon for antitrust moves. Another reason that this trend is likely to continue is demographics. Many of the prominent antitrust scholars who were prominent figures in the antitrust battles of the 1970s and 80s are nearing retirement age or have already retired, leaving a number of schools in the top 15 or so that either have no significant antitrust presence or will not in the near future.
Another piece of evidence that the legal academy is learning that antitrust is back as a high demand area for scholars is the attention it is paid at conferences and in top journals. Consider, for example, the reemergence of antitrust at ALEA where it will have a total of four panels this year — which is as many or more than all other fields.
The growth in intellectual activity in antitrust can also be observed in the expansion of journals dedicated to the area and the number of publications in prominent journals. For example, in recent years new journals like Competition Policy International, Global Competition Policy, and the Journal of Competition Law and Economics (among others) have emerged and published a steady stream of high quality scholarship. On top of that, my more casual empirical observation is that the number of antitrust articles in JLE, JLS, and top law reviews has increased in recent years.
Another observation is the emergence and activities of antitrust related centers and institutes at law schools across the country. For example, we’ve noted the recent emergence of such centers at GW, and the competition related programs at the Searle Center at Northwestern. These are in addition to similar centers at Berkeley, Loyola, across the Atlantic, as well as more familiar domestic and non-academic voices in the antitrust policy landscape like AAI.
WHY THE GROWTH IN DEMAND FOR ANTITRUST AT LAW SCHOOLS?
So why has antitrust come back in this way over the past decade or so? I think there are 4 primary causes.
The first is the emergence of antitrust & intellectual property as a field. Not only has the growth of this field and the intersection of patent and antitrust in particular created jobs for lawyers, but its raised to the forefront a number of new intellectual challenges for antitrust law in areas such as licensing, patent holdup, patent pools, reverse payments, and monopolization generally.
The second is the proliferation of antitrust internationally. There are two components here that I think explain much of the growth in addition to the fact that we now have more than one hundred national antitrust laws — which creates all sorts of special challenges but would not itself, in my view, create the explosion in demand that we’ve seen in the legal academy. The first is the emerging Chinese antitrust law and the high stakes battle between US and European regulators to influence the analytical underpinnings of applications of that law. The second is the emergence of the European Commission as the most active and aggressive enforcer of single firm conduct in cases involving US firms like Intel, Qualcomm, Rambus and others.
The third cause is the unprecedented flurry of activity from the Supreme Court in recent years and the apparent willingness to address important antitrust issues. For a number of reasons I suspect that this trend will continue and we’ll see the Supreme Court continue to take cases for the next few years.
A fourth factor is related to the others. Over the last few years it has become difficult to read popular news sources without seeing an antitrust issue getting coverage. The sheer number of high profile cases in recent years has a lot of attention. Consider recent cases that have got mainstream press: Whole Foods, all permutations of deals involving Google-Yahoo-Doubleclick, Ticketmaster-Live Nation, Sirius-XM, Whirlpool-Maytag, Intel, Microsoft, Rambus, and others.
There are other factors I think are at play here as well but probably have less influence despite contributing to the overall sense that antitrust is important again. For example, political change has resulted in considerable debate over the Section 2 Report and also generated proposed legislation involving RPM and reverse payments that has raised the overall profile of antitrust. Increasing concerns over consumer protection have given rise to a growth in antitrust related consumer protection actions.
Overall, my sense is that these developments have created significant antitrust activity in practice, but more importantly for the changes in the legal academy, generated important new topics to think and write about. For example, intellectual battles are now raging in antitrust scholarship over the appropriate scope of Section 5, antitrust analysis of single firm conduct (see, e.g., the AMC/Section 2 Report), the prospects of re-writing the Merger Guidelines, consumer protection and antitrust, empirical antitrust and evaluation of agency performance, patent holdup, resale price maintenance, reverse payments amongst other topics. In turn, my sense is that the growth in practice has made antitrust a high demand subject for students (here’s a post on why to take antitrust).
there are other areas that were clearly very intellectually active, including the two you mention. I think I have in mind primarily global interest, but also the growth of antitrust/ IP and related issues. On top of that, I think there is a bit of a “perfect storm” effect arising out of the combination of those things along with the incredibly activity level at the Supreme Court, the inter-agency debates, the pending Congressional legislation(RPM and reverse payments at a minimum), and the change in administration.
Even if the current era is tied for 1st or 2nd, the general point holds: as far as intellectual activity goes, antitrust is far from dead.
I’ll have to think more about the study. But yes, a download measure isn’t likely to cut it.
Josh: you say “I suspect that right now is one of the most intellectually active antitrust eras in history.” Two comments. First, I’m not clear on what you have in mind. I suspect that the era when structure/conduct performance and no-fault monopolization were debated (roughly the 1960s), the early Chicago school era (say 1975-85), and the period when Microsoft, innovation, and globalization together caught everyone’s attention and the U.S. enforcement agencies bought into both game theory and econometrics (a decade beginning perhaps during the early 1990s) were all more intellectually active than today in the U.S. Do you have in mind the increased academic interest in competition policy abroad? If you are referring to the U.S., what are you thinking of? One thing that occurs to me is the recent work on 2-sided markets, which has had some influence but hasn’t generated as much intellectual activity as we saw in previous eras, I would say. Second, putting aside your provocative claim, I am curious whether you think you could design a study to tell whether an antitrust era is “intellectually active” — I don’t think we can measure this by SSRN downloads.
Josh, you got me thinking:
Well argued. After many interviews with schools which were happy to let me consider antitrust as a hobby course, I was ecstatic to land at one that wanted it taught as part of the fundamental curriculum. In truth, antitrust as an intellectual enterprise has never been more exciting, because the next dominant theoretical paradigm — and one is coming — has yet to be stated.
Josh, we certainly view Antitrust as a core part of our high tech and IP curriculum at Santa Clara University, and we strongly encourage IP and high tech students to take the course regardless of which particular niche the students plan to pursue. Eric.
I would add another reason: Recognition of the potential for disintermediation, both legally and economically, combined with a mathematical examination of the distinction between a monopoly and a monopsony (hint to economists: there’s a divide-by-zero problem in the HHI when it’s applied to monopsonies).
One obvious example of this is the trade-book publishing segment (which isn’t coherent enough to constitute an “industry”, but that’s for another time). From the end-purchaser’s point of view, there is no direct antitrust problem, because there are so many different trade publishers out there. From the author’s point of view, however the supplier, and therefore we’re in monopsony land there is a serious problem, particularly if the “market” definition acknowledges the stated purpose of copyright in the IP Clause and restricts itself to contracting situations that result in a price to the supplier sufficient to maintain the supplier at above the poverty level. Add in the entry barriers imposed by the distribution system and things get really interesting… and would satisfy the HHI “overconcentration” definition in each of the six major category-fiction markets, presuming that HHI and the DoJ guidelines had any mathematical validity.