I’ll be teaching an interactive web seminar on basic microeconomic concepts that form the basis of antitrust analysis through Competition Policy International’s Learning Center on three consecutive Wednesdays: May 13, 20, and 27th. CLE credit is available for practicing lawyers. Though I think the material will be useful for antitrust lawyers, law students interested in antitrust (or who might be doing antitrust this summer), and generally those interested in brushing up on basic economics.

Here’s the relevant information from the course advertisement:

I would like to invite you to join us for the CPI Learning Center’s next interactive web seminar, “Antitrust Economics 101”, presented by Professor Joshua Wright. This course is a three-part series taking place over consecutive weeks.

Session One, “Demand” will take place on Wednesday, May 13 at 12 pm E.S.T.

Session 2 (Supply and Cost) and Session 3 (Examples and Applications) will take place on the following Wednesdays, also at Noon E.S.T.

In the context of modern antitrust litigation, Professor Wright will focus on the key economic concepts underlying modern antitrust law, such as demand, substitution and income effects, elasticity, optimal pricing, price discrimination, supply, cost, consumer and producer surplus, cartel formation, and critical loss analysis.

This course is especially recommended for those who need or want a solid knowledge of the economics that drive antitrust analysis and decisions.  It will also be useful for those who would like to brush up on economic concepts. Although not just for lawyers, Professor Wright’s course has significant professional and practical content for attorneys practicing in the antitrust and competition policy arenas, both domestically and abroad.

This series will be presented over CPI’s Global Learning Platform which delivers lectures globally in real time. The only technology required is a computer with a flash player and a telephone.

https://www.competitionpolicyinternational.com/course_main.html>. The fee for all three classes, with CLE credit, is $355; without CLE credit the cost is $129. Discounts for multiple users from the same organization and courtesy admissions for competition authorities are available.

This course is approved for CLE in PA, as CPI is an Approved Provider of Distance Learning Courses in PA. CLE credit is also available to New York attorneys, and has been applied for in additional states including Illinois and California. For complete information regarding discounts and the availability of CLE credit, special registration needs, or for any other questions, contact us at LearningCenter@competitionpolicyinternational.com.

I hope you can join us.

My colleague Adam Mossoff is blogging over at the Volokh Conspiracy on his fascinating paper, A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket. Here’s an excerpt from the first post:

The debate centers on whether patent thicket theory accurately explains or predicts such problems in practice, and the empirical studies produced thus far are arguably in equipoise. In speaking about anticommons theory, Professor Heller acknowledges that “the empirical studies that prove — or disprove — our theory remain inconclusive.” Nonetheless, in the patent literature and in the popular press, vivid anecdotes abound about patent thickets obstructing development of new drugs or preventing the distribution of life-enhancing genetically engineered foods to the developing world.

Given the heightened interest today amongst scholars and lawyers concerning the existence and policy significance of patent thickets, a historical analysis of the sewing machine patent thicket in the 1850s — called the “Sewing Machine War” at the time — and the denouement of this patent thicket in the Sewing Machine Combination of 1856 is important.

On one hand, it is an empirical case study of a patent thicket that (temporarily) prevented the commercial development of an important product of the Industrial Revolution. The sewing machine was the result of numerous incremental and complementary inventive contributions, which led to a morass of patent infringement litigation given overlapping patent claims to the final commercial product. The Sewing Machine War thus confirms that patent thickets exist, and that they can lead to what Professor Heller has identified as the tragedy of the anticommons.  On the other hand, the story of the sewing machine challenges some underlying assumptions in the current discourse about patent thickets.

The posts and the paper are highly recommended material for TOTM readers interested in issues involving IP and antitrust.

Over at Crooked Timber, Tyler Cowen comments on Steve Teles’ book on conservative legal movements.  I never get tired of plugging Steve’s book (as he knows), so I’ll do it again here:  It’s a great book, a riveting read, and instructive, to boot.  Buy a copy today!

Tyler comments (among a series of comments in an ongoing Crooked Timber symposium 0n the book) on the section of the book on law and economics.  It’s about a third of the book (and of course it’s the most interesting third!), but over at Crooked Timber, as near as I can tell, they have no one who actually, you know, does law and economics to comment on the book, and only Tyler who comes close. 

Tyler is a great blogger, a great economist, and a great eater, among other things.  On this, however, Tyler doesn’t do a very good job. 

Here’s the key part (for me) of his post:

I view the relatively conservative nature of the law and economics movement as a historical accident which is already more or less obsolete. For better or worse, the wave of the future is scholars such as Cass Sunstein, not Henry Manne. The simple lesson is simply that in the long run “mainstream” usually wins out, even if the efforts of Henry Manne shifted or accelerated what later became mainstream trends.

One topic which interests me is how the “conservative” law and economics movement, as it is found in legal academia, differs from “market-oriented” economics, as it is found in the economics profession. The “right wing” economist and legal scholar will agree on many issues but you also will find fundamental variations in their temperament and political stances.

Market-oriented economists tend to be libertarian and it is rare that they have much respect for the U.S. Constitution beyond the pragmatic level. The common view is that while a constitution may be better than the alternatives, it is political incentives which really matter. James M. Buchanan’s program for a “constitutional economics” never quite took off and insofar as it did it has led to the analytic deconstruction of constitutions rather than their glorification. It isn’t hard to find libertarian economists who take “reductionist” views of constitutions and trumpet them loudly.

The conservative wing of the law and economics movement, in contrast, often canonizes constitutions. Many law and economics scholars build their reputations from studying, interpreting, or defending the U.S. Constitution. You don’t get to higher political or judicial office by treating a constitution in purely economic terms.

What I don’t understand is who these “conservative” law and economics scholars are.  OK, I know a couple.  But if the relevant distinction for Tyler is between “conservative” and “market-oriented,” I’d hold the law and economics stalwarts up to Tyler’s favored economists any day.  In what fashion are the following people”conservative” and not “market-oriented”?  Henry Manne, Paul Mahoney, Dick Posner (in the old days), Frank Easterbrook, Dan Fischel, Josh Wright, Ed Kitch, Bill Landes, Henry Butler, Richard Epstein, George Priest, Alan Schwartz, Roberta Romano, etc., etc. 

Moreover, among these–just the first few who popped into my head–I’d say only one is known for any really significant constitutional analysis–and it’s hardly reverence, at that.  To be sure, these folks are trained in the law, and take institutions seriously.  The Constitution is a pretty important part of the institutional landscape in the US.  Taking it seriously is a part of taking the law seriously.  Fetishizing it–that’s different.  But I know very few law and economics scholars who fetishize the Constitution.  Liberal legal scholars–even some liberal economists? Absolutely.  Law and economics scholars?  Not so much.  So–who are the law and economics scholars who built “their reputations from . . .defending the U.S. Constitution?” 

Finally, Tyler claims that the students at GMU Law are just like law students everywhere–with no greater an appreciation for the Coase Theorem or moral hazard than law students anywhere else.  If that is true–and it may well be true; certainly GMU Law seems to be losing its clear focus on law and economics–it is a change from the days when my dad was dean.  The goal (and as far as I know it was achieved) was that the students at GMU would have a very different experience and training than law students elsewhere, with the possible exception of Chicago.  If Tyler’s students don’t reflect this, I’d say things have changed.  Or else it’s self-selection–a concept that any self-respecting George Mason Law student would well understand.

Wrapping up what looks like a very interesting conference at the University of Illinois on the interaction between business, film, and law, Larry Ribstein shares some thoughts in an excellent post.  Readers of Ideoblog will be familiar with Professor Ribstein’s take on how artists’ negative views of capitalists find their way into film. In summing up his retrospective thoughts on the conference, Ribstein concludes:

The bottom line is that it is pretty clear that a narrative of business is being constructed both in film and the popular press (though Mae Kuykendall has her doubts). Law and economics types like me generally eschew narrative theory as soft stuff, lacking rigor. But that leaves the construction of the critical stories to others. Moreover, this is an area that is susceptible to both rigorous public choice analysis and data about the construction and effect of the story. That’s the discussion I’m trying to promote.

Finally, this conference further convinced me of the value of this type of gathering. Unlike the typical law school conference, this was not a law-review-driven collection of mini-workshops on papers in process. Though that sort of conference can be valuable, too often it amounts to the retailing of ideas that are best done in other ways. This was instead an extended discussion that, I hope, contributed to the process of forming ideas. In our digital age, this could end up being the primary function of physical meetings among academics.

Go read the whole thing.

• Solow reviews Posner on the financial crisis
  
• Dave Hoffman has an excellent post summarizing the consumer bankruptcy debate in empirical legal scholarship in a series of recent papers between Rafael Pardo and a group including Bob Lawless, Angela K. Littwin, Katherine M. Porter, John Pottow, Deborah Thorne, and Elizabeth Warren
• Why is college tuition rising?
• Vertical integration in the soda industry to solve incentive conflicts (HT: Luke Froeb)

That’s from Firefox chief software architect Mike Connor in an interview with PCPro.  Here’s an excerpt suggesting that Mozilla fears that its recent success might lead to antitrust liability in the United States or elsewhere:

Firefox has only just tipped past the 20% mark in worldwide browser market share, and is still a long way away from achieving the 90%+ market share that Internet Explorer enjoyed in its heyday.

Yet, Firefox has a market share of more than 50% in some countries and is hugely popular among PC enthusiasts: Firefox was used by around 40% of visitors to PCPro.co.uk last month, and Connor claims the browser is used by about 80% of visitors to Digg.com.

Connor admits the prospect of achieving monopoly status – defined as two thirds of the market in the US – has been a topic of discussion at Mozilla HQ.

Perhaps there are too such things as false positives.

Its an interesting article (see also here) especially in light of the recent EU investigation of Microsoft’s bundling of IE to the operating system.  Connor also commented that Firefox did not want to be bundled with Windows as a remedy.  The most interesting line of all was that Opera’s complaint that bundling had harmed competition in the browser market was “provably false” because it is “asserting that bundling leads to market share” and “I don’t know how you can make that claim with a straight face.”

It is unknown whether Mozilla Foundation chairperson Mitchell Baker was straight-faced when he wrote this post supporting the EU’s investigation of IE bundling an, of course, offering Mozilla’s assistance in crafting the appropriate remedial response.   The most curious line in Baker’s post, however, is the rebuttal to the proposition that Mozilla’s increasing share across the world is evidence of a competitive marketplace or at least one would not impede equally efficient competitors:

Equally important, the success of Mozilla and Firefox does not indicate a healthy marketplace for competitive products. Mozilla is a non-profit organization; a worldwide movement of people who strive to build the Internet we want to live in. I am convinced that we could not have been, and will not be, successful except as a public benefit organization living outside the commercial motivations. And I certainly hope that neither the EU nor any other government expects to maintain a healthy Internet ecosystem based on non-profits stepping in to correct market deficiencies.

Leaving aside the bit about the non-profit worldwide movement “living outside commercial motivations”, wouldn’t this claim cut the opposite direction.  That is, if bundling IE couldn’t even exclude from the marketplace an apparently spontaneous collective invariant to the profit motive then surely the mere presence of the bundle couldn’t exclude a greedy, profit-seeking rival could it?  I’m not suggesting this is the appropriate way to think about the antitrust analysis here.  But I find the line of argument curious and likely counterproductive.

• Mike Sykuta on GM and Transaction Cost Economics (O&M)
• Peter Klein on Antitrust and the Theory of the Firm (again, O&M)
• John Pfaff continues his series on evidence-based empirical work (at Prawfs)
• Who Games SSRN Download Counts?
• Guido Imbens (from whom I took econometrics at UCLA) defends randomized experiments in development economics against the critics (HT: Freakonomics) (see also here)

There’s an interesting story in the WSJ about a merger between the HIV-drug businesses at Glaxo and Pfizer.  Some details from the story:

Examples of cooperation among drug giants are unusual — Pfizer and Glaxo are the world’s top two drug companies by sales, respectively — since big pharmaceutical companies compete to sell products, attract top talent and bring the best new drugs to market. Such arrangements aren’t unprecedented, though: In 2007, AstraZeneca PLC and Bristol-Myers Squibb Co. struck a partnership to develop and market two diabetes drugs.

Mitigating the high risk of drug development is one attraction of working together. Putting a drug through clinical trials can cost hundreds of millions of dollars, and many drugs fail.

HIV is a tough area of drug development. There are a few dozen good treatments available, and coming up with something better has proved difficult.

Companies also have drawn criticism from AIDS activists for charging too much in both wealthy and poor countries. This pressure has led most companies to lower prices in recent years to not-for-profit levels in the poorest nations.

The HIV business has been a drag on Glaxo’s sales growth. Glaxo had HIV sales of £1.5 billion last year, up 5% from 2007, while its total sales grew 7% to £24.4 billion. Pfizer’s pipeline will help Glaxo “stay in the game,” Mr. Witty said.

The venture also will allow the companies to combine some products into new combination pills, which are widely used in HIV treatment.

The agreement allows Pfizer to increase its stake in the venture to as much as 30.5% if enough of its HIV drugs make it to market. If Pfizer’s products don’t reach the market, its share will drop to 9%, the companies said.

Randy Picker has posted The Google Book Settlement: A New Orphan Works Monopoly? to SSRN.  I have not been following the antitrust issues related to the settlement as closely as I should be and so I’m really looking forward to reading this.  Here is the abstract:

This paper considers the proposed settlement agreement between Google and the Authors Guild relating to Google Book Search. Google boldly launched Google Book Search in pursuing its goal of organizing the world’s information. Even though Google was sensitive to copyright values, the service relied on mass copying and thus Google undertook a substantial legal risk in setting up the service. That risk was realized with the lawsuits by the Authors Guild and the Association of American Publishers. The October, 2008 settlement agreement for those suits will create an important new copyright collective and will legitimate broad-scale online access to United States books registered before early January, 2009.

The settlement agreement is exceeding complex but I have focused on three issues that raise antitrust and competition policy concerns. First, the agreement calls for Google to act as agent for rights holders in setting the price of online access to consumers. Google is tasked with developing a pricing algorithm that will maximize revenues for each of those works. Direct competition among rights holders would push prices towards some measure of costs and would not be designed to maximize revenues. As I think that that level of direct coordination of prices is unlikely to mimic what would result in competition, I have real doubts about whether the consumer access pricing provision would survive a challenge under Section 1 of the Sherman Act.

Second, and much more centrally to the settlement agreement, the opt out class action will make it possible for Google to include orphan works in its book search service. Orphan works are works as to which the rightsholder can’t be identified or found. That means that a firm like Google can’t contract with an orphan holder directly to include his or her work in the service and that would result in large numbers of missing works. The opt out mechanism – which shifts the default from copyright’s usual out to the class action’s in – brings these works into the settlement.

But the settlement agreement also creates market power through this mechanism. Absent the lawsuit and the settlement, active rights holders could contract directly with Google, but it is hard to get large-scale contracting to take place and there is, again, no way to contract with orphan holders. The opt out class action then is the vehicle for large-scale collective action by active rights holders. Active rights holders have little incentive to compete with themselves by granting multiple licenses of their works or of the orphan works. Plus under the terms of the settlement agreement, active rights holders benefit directly from the revenues attributable to orphan works used in GBS.

We can mitigate the market power that will otherwise arise through the settlement by expanding the number of rights licenses available under the settlement agreement. Qualified firms should have the power to embrace the going-forward provisions of the settlement agreement. We typically find it hard to control prices directly and instead look to foster competition to control prices. Non-profits are unlikely to match up well with the overall terms of the settlement agreement, which is a share-the-revenues deal. But we should take the additional step of unbundling the orphan works deal from the overall settlement agreement and create a separate license to use those works. All of that will undoubtedly add more complexity to what is already a large piece of work, and it may make sense to push out the new licenses to the future. That would mean ensuring now that the court retains jurisdiction to do that and/or giving the new Registry created in the settlement the power to do this sort of licensing.

Third, there is a risk that approval by the court of the settlement could cause antitrust immunities to attach to the arrangements created by the settlement agreement. As it is highly unlikely that the fairness hearing will undertake a meaningful antitrust analysis of those arrangements, if the district court approves the settlement, the court should include a clause – call this a no Noerr clause – in the order approving the settlement providing that no antitrust immunities attach from the court’s approval.

The Federal Trade Commission and the Searle Center at Northwestern are hosting the second annual Microeconomics Conference.  The conference will take place on November 19th and 20th at the FTC.  Here’s the conference announcement and call for papers:

The Federal Trade Commission’s Bureau of Economics, Northwestern University’s Searle Center on Law, Regulation and Economic Growth, and Northwestern University’s Center for the Study of Industrial Organization will host a two day conference to bring together scholars working in industrial organization, information economics, game theory, quantitative marketing, consumer behavior, law and economics, behavioral and experimental economics, and other areas related to the FTC’s antitrust, consumer protection and public policy missions. Examples of potentially relevant topics include advertising, information disclosure, mergers, vertical practices, mortgage and consumer credit card markets, bundling, loyalty and other discounts, dynamic demand estimation, nutrition and health, intellectual property, optimal penalties, and cost-benefit analysis in enforcement.

Interested participants should send an abstract or completed paper to BE-IOC@ftc.gov by July 7, 2009. We also welcome suggestions for panel discussions.

The scientific committee for the conference is:

• Kyle Bagwell (Stanford)
• Marianne Bertrand (Chicago-Booth)
• Aviv Nevo (Northwestern)
• Scott Stern (Northwestern-Kellogg)

Organizers: Chris Adams (FTC) and Paul Rothstein (FTC)

The conference will be held at the Federal Trade Commission New Jersey
Avenue Conference Center, 601 New Jersey Avenue NW, Washington, DC
20001.

Cnn.com tells us the good news that “Goldman reports $1.8 billion profit,” but the totality of the information in the cnn.com article strikes me as mildly curious. 

While announcing that “Goldman reports $1.8 billion profit,” the article points out that Goldman needed $10 B in TARP funds only a few months ago.  Yet now Goldman is planning to sell stock in order to raise $5 B in order to pay down the TARP obligation.  Further, Goldman reported earnings of $3.39 per share for the quarter ended March 31, which is more than double the earnings per share amount projected by analysts.

All of this together paints a picture that strikes me as mildly curious.  I suppose the fact that Goldman took $10 B in TARP funds but is now, merely months later, parading $1.8 billion in quarterly profit could be chalked up to “short term liquidity problems.”  But the analysts’ 100% miss on Goldman’s earnings per share is a pretty big miss given that usually banks offer enough guidance for the analysts to stay on the ball field.

Goldman’s plan to raise $5 B in a stock offering has me similarly ruminating, given that now would not have struck me as the ideal time for Goldman to tap the stock market for $5 B. 

The whole situation harkens back to 1999, and I cannot help but wonder what Arthur Levitt might think of it.

UPDATE 3:  It just keeps getting better.  Now we’ve added Mike Baye, formerly Director of the Bureau of Economics at the FTC, now returned to his post at Indiana.  He’ll be moderating and I’m sure commenting on many of the papers. 

UPDATE 2: And now Susan DeSanti, newly-appointed Director of the Office of Policy and Planning at the FTC has signed on for our industry/regulator roundtable.  A not-to-be-missed event! 

UPDATE:  We’re delighted to announce that Bill Kovacic will be joining us to deliver the conference’s morning keynote, as well.  A great conference just got even better!

 For the third year, Josh and I have organized the annual George Mason Law School/Microsoft Conference on the Law and Economics of Innovation.  The conference is at the Arlington Hilton on May 7; registration is free. 

This year’s conference is on “Online Markets vs. Traditional Markets,” and once again we have a stellar line-up.  The (beautifully re-designed) conference website is here.  You can register for the conference here. 

This year features a keynote address from Susan Athey (Harvard Economics; Clark Medal winner), as well as the following presentations:

Peter Klein (Missouri Economics)– Does the New Economy Need a New Economics?
Thomas W. Hazlett (George Mason Law) – The Role of Exclusive Spectrum Rights in Wireless Network Innovations: Of Newtons, Blackberries, iPhones & G-Phones
Eric Goldman (Santa Clara Law) – The Economics of Reputational Information

Florencia Marotta-Wurgler (NYU Law) – Does Anyone Read Fine Print? A Test of the Informed Minority Hypothesis
Howard Beales (George Washington Business) – Public Goods, Private Information, and Anonymous Transactions: Providing a Safe and Interesting Internet
Peter Swire (Ohio State Law) – Privacy and Antitrust

Philip J. Weiser (Colorado Law; DOJ)— Re-evaluating the Theory and Realities of Online Contracts
Randal C. Picker (Chicago Law) — The Mediated Book
F. Scott Kieff (Wash U. Law (moving to George Washington Law)) — Commerce in the Shadow of the Commons: Business Models in Cyberspace

We’ll also have an industry roundtable to reflect on the day with representatives from Microsoft, Amazon and Facebook.

Should be a great conference–Please join us!

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).

Congratulations to Professor Shelanski (HT: Brian Leiter).  Berkeley’s strength in antitrust is impressive.  Note that even with the likely departures of Joe Farrell (FTC Bureau of Economics), Carl Shapiro (DOJ) and Shelanski (Georgetown, and maybe into the administration?), the group still includes at least Dan Rubinfeld and Aaron Edlin and should still be considered amongst the handful of very strong antitrust groups in the country.