In what has become an annual affair, around this time of the year, I like to make the case for law students to take antitrust. Each year, the post is edited and tweaked a little bit. So, without further ado, here is this year’s edition of “Why Take Antitrust?”
As the start of the new academic year inches closer, and students are deciding what courses to take, I thought I’d give a little plug to antitrust law. I’ve seen enrollment in antitrust courses vary dramatically over the past 10 years or so since I was a student and now as a professor. I certainly know the three-pronged case against taking antitrust: “its not a bar course,” “you have to know a bunch of economics, right?”, and “its really difficult.” But I hear this question from students frequently and I thought I’d share my typical answer to the titular question here:
First, antitrust is flat out interesting stuff. We’re talking cartel arrangements in rooms filled with smoke, complex price-fixing arrangements, rent-seeking and use of government restrictions to exclude rivals, and all forms of cutthroat competition between firms to stay alive in a competitive marketplace. You know, movie material. For some reason antitrust has earned the reputation of being a “boring” class for specialists who are interested in economics. Wrong, wrong, wrong. Sure, antitrust will force you to learn some economics because the law itself has incorporated economic concepts (see, e.g. the Merger Guidelines). But this is a feature, not a bug. Economics is a tool that can help one understand how the world works and provide some interesting insight on business practices that we observe in the world and impact us everyday at the gas pump, the grocery store, the computers we all work on, and just about everywhere else. Supply and demand graphs might be boring to some, and I don’t mean to suggest that antitrust is for everyone all the time, but its fun to think about questions like how the Sirius-XM merger will impact prices, whether premium, natural and organic supermarkets are a relevant market (the issue in Whole Foods/ Wild Oats), and the economic and business organization of the National Football League, and just about every business venture involving Google, Microsoft, Apple and Yahoo.
Second, antitrust law is become an increasingly important component of the international business landscape. Take a look at this photo (the countries in red have antitrust laws on the books). Over 100 countries currently have passed antitrust laws (see here). Having at least a passing knowledge of antitrust is increasingly an important asset for corporate lawyers generally. With antitrust enforcement now in India, China, Hong Kong, Singapore, and the EU-US antitrust convergence/divergence debate growing in importance, challenging legal and economic debates will continue to rage in the antitrust space for years to come (Between you and I, these changing market conditions have also increased demand for antitrust law professors and economists in recent years, not to mention — and most importantly, for antitrust lawyers). After a slowdown for a few years with the economy, some casual empiricism suggests that merger activity is starting to pick up, antitrust and consumer protection litigation is increasing, and antitrust practices are going to need to reload.
Third, the bar exam issue. While its true that antitrust law is not going to help you on the bar, neither are a bunch of interesting courses. And one shouldn’t conflate inclusion on the bar exam with general importance in terms or, of course, intellectual interest (which so far as I can tell, is still an acceptable reason for enrolling in courses). Besides, there is at least some evidence that courseload choices have little to do with bar passage rates. On top of all that, in light of #2, it is a good time to pursue a career as an antitrust lawyer.
If you are a law student — and haven’t thought about adding antitrust to your dossier — give it some thought.