Professor Bainbridge has a provocative post up taking on empirical legal scholarship generally.  The While the Professor throws a little bit of a nod toward quantitative work, suggesting it might at least provide some “relevant gist for the analytical mill,” he concludes that “it’s always going to be suspect — and incomplete — in my book.”  Here’s a taste:

And then there’s a recent paper I had to read on executive compensation, whose author should remain nameless. The author found a statistically significant result that he didn’t like. So he threw it under the bus by claiming that his regressions were flawed. Accordingly, he turned to panel data analyses that gave him a result he liked. All the while, another paper on the same topic had found the same results as our author’s regressions. Who was it that said statistics don’t lie?

On top of which, of course, there’s the problem that the number crunchers can only tell you something when they’ve got numbers to crunch. Suppose there was a change in the law in 2000. A before and after comparison might be instructive. But companies weren’t required to disclose the relevant information until 2005. You don’t have anything to measure.

I’m tempted to ask how many legal theory debates have been resolved convincingly by a single paper?  But instead I’ll try to do something more constructive.  At least I hope so. Larry Ribstein chimes in to make the well taken starting point that theory itself is not useful without data.  That is obviously right.  And I think if one were too ask whether the legal literature was suffering from too many theories of too much empirical knowledge — I’d opt for the latter.  But, I’ve got a few different bones to pick.

The first is that even holding regressions and sophisticated quantitative analysis aside for the moment — we’ll come back to it — is that the data should constrain the theory.  In fields that I am familiar with, there is a great deal of legal scholarship that simply ignores the few stylized facts or empirical regularities established by the empirical literature but builds theories and rattles off policy implications.  Of course, the theory of legal theorists rejecting an empirical methodology that restricts their ability  to generate theory willy nilly is not one that can be casually rejected.  I mean, unconstrained theory does sound like more fun doesn’t it?

Second, I read Bainbridge’s post as revealing a common tendency in the legal academy to dismiss empirical evidence if it, alone, is not sufficient to resolve some policy debate.  Empirical evidence is hard to collect and a body of empirical knowledge builds over time.   My sense is that the intuitive gut instinct of law professors is that the role of empirical scholarship is to “prove” assertion X in the way that one might establish the proper interpretation of a contract or statute.  Fads in legal scholarship are another example of this high discount rate in the academy.  For example, I’ve complained before about what I think is the over-use of behavioral law and economics, lack of rigor in drawing out policy implications from the evidence and models, and insufficient attention to empirical data.   There is a premium in the legal literature on striking while the topic is hot, and on over-claiming (and of course, having a catchy paper title) as well, and without expert peer review of claims concerning the relevant empirical literature, perhaps the latter is to be expected.  In any event, the point is that to the extent that “law and social science” disciplines like law and economics want to be taken seriously, and claim the advantages of the ancillary discipline, they cannot simultaneously reject the methodological commitments that come with it — even if those come with the price of things moving a bit slower than the law review (or news) cycle.

Third, paragraphs like Bainbridge’s first make me wonder whether this attitude (not his specifically) about empirical work are informed judgments or just reflexive tendencies to question sophisticated models that are outside our own strike zone?  Knowing nothing about the paper that the Professor is talking about in his example, one can in the abstract think of lots of reasons an empiricist might run a plain vanilla OLS specification as a baseline, report the results, go on to suggest that OLS in this setting as various problems, and move on to some more sophisticated panel approach, and compare the more robust results to contrasting ones in the literature.  Of course, the sort of specification search that Steve hints at could also be going on too.  I’ve got no horse in that race.  But the more general point is that often the critiques of various econometric models by non-econometricians sometimes betray a thinly veiled anti-empirical bias that I think is often dressed up in the language of “omitted variable” bias.  I can vouch for having given dozens of workshops at law schools where no discussion of panel data techniques and description of what exactly fixed effects control for is sufficient to respond to the “but did you control for X, Y and Z” question.

In sum, there is a lot of empirical work out there that is worthy of suspicion.  There is work that it methodologically unsound, suffers from poor and unreliable data or from authors that overclaim.  But there is a lot of really good stuff out there too!  Data is getting cheaper and methods more sophisticated.  Of course, the reduced cost can lead to the types of problems that Steve raises.  But quality problems can and do also occur in doctrinal scholarship pplying other, non-quantitative methodologies to interpret statutes, synthesize cases, make historical claims, or construct theoretical models.  The devil in these arguments is typically in the details no matter what the methodological toolkit.  And rigorous academic discourse is often about identifying and exposing those details to evaluate claims and hopefully, answer questions that can move the literature forward.   I understand that lawyers are going to be suspicious of foreign toolkits, like econometric analysis.  But in my view, the reflexive rejection of empirical work because “its hard to control for everything” is about as persuasive as reflexive rejection of claims that there is some coherent theory of statutory interpretation because “the judge just makes it up anyway, doesn’t he?”  Both might be true on a case by case basis, but I think the bar that legal scholars face in each case is to take seriously the work of others and describe exactly what the problems are and what implications they have for the results.  Let me be absolutely clear that I do not view Professor Bainbridge’s post as committing that error — it IS a blog post after all  — but it did get me thinking about this issue of empirical work and its reception in the broader legal community more generally.

A few years back, my colleague Royce Barondes and I wrote an essay entitled Should Antitrust Education Be Mandatory (for Law School Administrators)? The essay, whose title was intended to be tongue-in-cheek, argued that the members of the Association of American Law Schools were engaged in an illegal conspiracy to limit competition for professor talent. The focus of our criticism was an AALS “good practice” under which the law schools agree not to extend offers of employment to professors at competing law schools after March 1.

Law school administrators maintain that their agreement not to compete is justifiable because unbridled competition for professor talent causes them inconvenience (e.g., having to reschedule the fall semester courses of a professor who gets hired away during the spring or summer). But law schools could always rely on non-collusive, unilateral means of avoiding these difficulties. They could, for example, execute employment contracts that preclude professors from departing after some particular date and specify some amount of liquidated damages as a remedy for breach. In any event, the Supreme Court has made clear that the law schools’ argument — “Competition for professor talent is just too hard!” — amounts to a frontal assault on the Sherman Act and is entitled to no weight. (See Professional Engineers.)

Perhaps Royce and I should have included law firm recruiters and law school placement directors in our proposed antitrust education program. A few weeks back, a prominent group of those folks — acting through the National Association for Law Placement, or “NALP” — proposed a similarly collusive agreement not to compete for legal talent. The centerpiece of the proposed scheme is a pact among law firms, which currently interview law students whenever they want and make offers on a rolling basis, to refuse to extend offers of summer employment to second-year law students before a set date in January. The law schools, then, agree to punish gun-jumping firms (which the NALP proposal revealingly terms “cheaters”) by barring them from on-campus recruiting. NALP attempts to justify this law school-policed collusion among employers on grounds that it (1) allows firms to make staffing decisions when they have a better idea of their employment needs (i.e., after their year-end accounting); (2) enables firms to utilize better, but more time-consuming, interview methods (tests, simulations, “McKinsey-style group projects,” etc.); and (3) prevents firms from having to interview law students in the late summer and early fall, when lawyers like to vacation. (I’m serious. Read the proposal linked above.)

This agreement among law firms to limit competition in entry-level hiring is a bad idea for a number of reasons. For example, do the firms really want to extend the wining and dining period until January? Do they really want to replace the current system of rolling offers, in which the timing of an offer doesn’t reveal much information, with a system that signals to second-round offerees that they were not first choice? Relative to the current rolling offer system, won’t a scheme that encourages firms to make all or most of their offers at once (lest they lose attractive candidates to other firms) exacerbate, rather than alleviate, the difficulty of managing yield?

Most importantly, though, this agreement is a bad idea because it constitutes an illegal restraint of trade among competitors. A group of competitors has effectively said: “We don’t like having to make quick hiring decisions to catch the best talent, so we’re going to agree to limit competition amongst ourselves, and we’re going to enlist the law schools, who desperately want us to hire their grads, to act as our policemen.” That, my friends, is a naked restraint of trade. It seeks to level the playing field by removing an advantage from those well-managed law firms that are good at identifying and wooing talent and that can confidently predict their future business prospects, and it doesn’t create notable efficiencies (e.g., transaction cost reductions) or enable the creation of a new product or service.

Moreover, its purported justifications fail. The agreement isn’t necessary to achieve the first two putative benefits — enabling firms to make hiring decisions when they have a better idea of future labor needs and permitting them to utilize more time-consuming interview methods. Under the current system, firms are free to delay making offers until they get year-end accounting data, and they can take as long as they want to evaluate job candidates. While they might find that they lose candidates to employers who are more confident about future needs and who are speedier evaluators, no one’s stopping them from taking their sweet time if they want to. As for the third purported benefit — less need to interrupt attorneys’ late summer vacations, etc. — courts have not looked favorably on the “But competition makes us work too hard!” defense.

Fortunately, one prominent law firm — Jones Day — has objected to the NALP recommendations on grounds similar to those set forth above. Perhaps we should put that firm’s excellent antitrust lawyers in charge of our mandatory antitrust education program for law school administrators and law firm recruiters.

I’ve been grading Contracts exams for the last week or so. This is where I earn my pay. It’s an awful job. The students take only one exam for the entire semester, so I really have to be careful to make sure I’m evaluating everyone fairly. Painstakingly reading and effectively ranking 75 three-hour essay exams is tedious beyond belief.

Adding to the tedium is the severe frustration I feel when students make the same basic mistake over and over. The one that really drives me nuts — especially because we went over the rule ad nauseum and I repeatedly warned the class not to make this mistake — is when a student says that a particular transaction is governed by the Uniform Commercial Code (UCC) because the parties to the deal are merchants. Even worse is when they tell me the UCC doesn’t govern because one or both of the parties is not a merchant.

Ugh! I honestly don’t know how I could make it any clearer that Article 2 of the UCC (the part we study in the basic Contracts course) governs all contracts for the sale of goods, even non-merchant sales. Every year, I increase the number of times I make this point in class. I’m now approaching 500 or so repetitions. (OK…That’s an exaggeration. But I really do emphasize this rule!)

I suppose students make this mistake with such frequency because one of the UCC’s most notorious provisions — Section 2-207 — makes merchant status relevant for one matter (the question of whether additional terms in a written acceptance or confirmation become part of a contract). We spend quite a bit of time on 2-207’s intricacies, so this must be the genesis of the confusion. In any event, it’s maddening! (Though not as maddening as losing your students’ exams on an international flight….)

Do other Contracts teachers have the same problem? And how about other common mistakes in other subjects? Let’s commiserate!

I’m delighted to report that the Liberty Fund has produced a three-volume collection of my dad’s oeuvre.  Fred McChesney edits, Jon Macey writes a new biography and Henry Butler, Steve Bainbridge and Jon Macey write introductions.  The collection can be ordered here.

Here’s the description:

As the founder of the Center for Law and Economics at George Mason University and dean emeritus of the George Mason School of Law, Henry G. Manne is one of the founding scholars of law and economics as a discipline. This three-volume collection includes articles, reviews, and books from more than four decades, featuring Wall Street in Transition, which redefined the commonly held view of the corporate firm.

Volume 1, The Economics of Corporations and Corporate Law, includes Manne’s seminal writings on corporate law and his landmark blend of economics and law that is today accepted as a standard discipline, showing how Manne developed a comprehensive theory of the modern corporation that has provided a framework for legal, economic, and financial analysis of the corporate firm.

Volume 2, Insider Trading, uses Manne’s ground-breaking Insider Trading and the Stock Market as a framework for many of Manne’s innovative contributions to the field, as well as a fresh context for understanding the complex world of corporate law and securities regulation.

Volume 3, Liberty and Freedom in the Economic Ordering of Society, includes selections exploring Manne’s thoughts on corporate social responsibility, on the regulation of capital markets and securities offerings, especially as examined in Wall Street in Transition, on the role of the modern university, and on the relationship among law, regulation, and the free market.

Manne’s most auspicious work in corporate law began with the two pieces from the Columbia Law Review that appear in volume 1, says general editor Fred S. McChesney. Editor Henry Butler adds: “Henry Manne was an innovator challenging the very foundations of the current learning.” “The ‘Higher Criticism’ of the Modern Corporation” was Manne’s first attempt at refuting the all too common notion that corporations were merely devices that allowed managers to plunder shareholders. Manne saw that such a view of corporations was inconsistent with the basic economic assumption that individuals either understand or soon will understand the costs and benefits of their own situations and that they respond according to rational self-interest.

My dad tells me the sample copies have arrived at his house, and I expect my review copy any day now.  But I can already tell you that the content is excellent.  Now-under-cited-but-essential-nonetheless corporate law classics like Some Theoretical Aspects of Share Voting and Our Two Corporation Systems: Law and Economics (two of his best, IMHO) should get some new life.  Among his non-corporations works, the classic and fun Parable of the Parking Lots (showing a humorous side of Henry that unfortunately rarely comes through in the innumerable joke emails he passes along to those of us lucky enough to be on “the list”) and the truly-excellent The Political Economy of Modern Universities (an updating of which forms a large part of a long-unfinished manuscript by my dad and me) are standouts.  And the content in the third volume from Wall Street in Transition has particular relevance today, and we would all do well to re-learn the lessons of those important contributions.

The full table of contents is below the fold.  Get it while it’s hot! (more…)

Brian Leiter conducted a poll where voters (anybody, apparently could vote with a poll restricted to specialists to come later) could rank the top law and economics faculties from a list of the individual scholars on those faculties.  Here are the results followed by a few first impressions:

1.  Harvard University

2.  University of Chicago

3.  Yale University

4.  New York University

5.  University of California, Berkeley

6.  Columbia University

*7.  Stanford University

7.  University of Pennsylvania (tied with Stanford, but farther behind Columbia)

9.  University of Virginia

10. George Mason University

A few quick comments and first impressions.

The two schools in the top ten that strike me as relatively overrated in the general poll are Chicago and UVA.  I’m less convinced about UVA, but the declining prominence of law and economics at Chicago is something that (at least in the crowds I run with) is frequently discussed.  There are great people there!  No doubt top ten and probably top 5.  My view is that there is some path dependence here based on the reputation of the earlier Chicago L&E movement.  Underated?  Well, bias aside, I think that George Mason is better than number 10 — and that’s after losing Gordon Tullock and Vernon Smith.  Larry Ribstein suggests ranking by the number of econ PhD’s.  That definition has the benefit of ruling out the “anything that vaguely mentions incentives or markets counts as economics” approach — but its underinclusive as well because it would rule out a lot of very thoughtful work produced by lawyes without Ph.Ds.  GMU has 6, I believe.   I guess one could also use publication in a peer reviewed economics or L&E journal as a proxy but I’m not going to do the counting.  I also believe that Northwestern is underrated and should make an appearance in the middle of the top 10 somewhere.  Georgetown’s group with Steve Salop, Kathy Zeiler, Josh Teitelbaum and Howard Shelanski coming over from Berkeley (just mentioning the PhD’s I know off the top of my head so sorry if I missed someone!) also seems like it should be getting some play here.  I’d also bump Penn up several spots.

I’m willing to be persuaded otherwise but these are my first impressions.  It will be very interesting to see how the “specialist” poll comes out.  Others thoughts?

My colleague Ilya Somin insightfully defends against allegations of the death of Moneyball in baseball and legal academia — largely making the point that larger institutions with larger payrolls imitating the successful elements of the strategy.  There is more there, so go read the whole thing as well as an interesting comment thread.  Ilya points out the following non-exhaustive list of GMU strategies on the hiring market aimed at acquiring undervalued assets: (1) L&E scholars, (2) conservative and libertarian academics; (3) academics with strong publication records but otherwise inferior traditional academic credentials.  Ilya correctly notes that L&E scholars are no longer generally undervalued in legal academia (he also asserts that ideological discrimination and credential fetishization are less than ten years ago — a view that contradicts my own prior somewhat — but I want to focus on the L & E point).

So, if GMU’s rise coincided with the rise of L&E in legal academy in the days of Henry Manne, but L&E scholars are no longer undervalued i the job market, what’s in store for GMU in the future?  Will it, as an institution, be able to continue to attract the talent that has led to its success in faculty quality studies such as this?  I know more about the L&E based legal academic job market than I do about either baseball or ideological discrimination at the institutional level so I want to add a few new points to the mix leveraging my thinking about the future of law and economics more generally into some observations about GMU’s future.

First, its important to note that L&E itself has changed.  L&E is no longer a “conservative/libertarian” discipline, as is often assumed by its discussants outside the discipline.  As I’ve discussed, among those with PhDs, the increasing mathematical formality of the economics discipline has produced a new generation of L&E scholars that are either serious modelers and theoreticians whose pay off comes largely for making marginal contributions to the sophisticated and elegance of the pre-existing literature than for the ideological policy leanings of the models or they are econometricians.  In antitrust economics, for example, the bulk of “new” scholarship in the last several decades has been a few standard deviations to the political “left” (in terms of supporting intervention) than the scholarship of the 60s and 70s.  In either case, the newly minted L&E scholars with PhD’s are ideologically all over the map.  Further, the changes in economic science itself also include the proliferation of behavioral economics — which is inherently to the ideological left of traditional L&E.  This is one reason that I’m skeptical about claims that there is less ideological discrimination than a decade ago.  To the extent that there is less “discrimination” against L&E scholars now than ten years ago, it is generally because they are either doing behavioral law and economics, theoretical modeling with interventionist policy implications, or in some cases, econometricians who are seen as ideologically neutral.

Second, will GMU continue its success in hiring high quality L&E scholars (including those with PhDs)?  I think so largely because that I am a firm believer that there remain plenty of undervalued assets in the L&E hiring market.  There are plenty of reasons for this belief.  One is that I do not believe most law schools have the institutional capability to review the work of the new L&E scholars doing highly formal modeling or theoretical econometrics.  Further, most of the top L&E scholars coming out of “name” institutions like Harvard, MIT, Chicago, Yale, Berkeley, Stanford, and elsewhere are doing work that requires significant mathematical skills to evaluate.  Under these conditions, institutions rely relatively more heavily on other quality signals: name of degree granting institution, reputation of advisors, etc.  While these metrics might be very good predictors of success in economics as a discipline, they do not necessarily predict success in L&E which has at its core retail and policy elements that are largely absent from economics.

I predict that most top law schools wanting to make an L&E hire will frequently and increasingly: (1) make hires consistent with ideological priors, and (2) rely on quality signals that are correlated with rank of degree granting institution and recommenders rather than how well the work is likely to translate into contributions to the L&E discipline.  There are a few implications of that analysis.  One is that its pretty likely GMU is not going to continue its success in this area by hiring Harvard / MIT JD/PhDs or behavioral economists (and probably theoreticians in general).   Another is that the undervalued assets are likely to be in corners and disciplines of the L&E field that do not necessarily correlate with the ideological priors of the legal academy in general or areas in vogue in economic science BUT that provide methods that are and have proven to be especially fruitful in L&E.

An obvious example is public choice economics.  Top economists focusing on public choice economics are not generally these days coming from top 10 “ranked” economics departments.   They are concentrated in a few places within departments that are especially strong in that area — but do not attract attention of the top law schools either for methodological, credential or ideological reasons. The discipline itself inherently offers policy relevant insights for L&E.   There are other areas (economic history comes to mind) that fit this profile.  But the more general point is that the metrics being used to evaluate top economists are the same as those used by the top law schools to evaluate talent, but not necessarily the same as predicting success in L&E.  So it is important for schools like GMU to spend the time searching for undervalued assets (hey, nobody said Moneyball was easy) and finding the candidates in “other” departments that do have the skills, interest in policy-relevant L&E, and creativity to generate an execute a fruitful L&E research agenda.  One bit of good news for GMU is that one source of comparative its advantage is that it does have a sufficient number of L&E scholars on its faculty to evaluate potential candidates internally without relying on noisy and more unreliable signals.  A second reason for optimism is that GMU as an institution has a history of success in finding undervalued assets.

While the search has become more difficult to find them in L&E — one can no longer just wait for the top schools to pass on the top candidates — they’re still out there.  If you know of one — or are one — send me an email!

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.

Brian Leiter put together an interesting survey on the “top 20″ highest quality publishers of legal scholarship.  Here are the top 10:

1. Harvard Law Review  (Condorcet winner: wins contests with all other choices)

2. Yale Law Journal  loses to Harvard Law Review by 112–66

3. Columbia Law Review  loses to Harvard Law Review by 155–43, loses to Yale Law Journal by 153–45

4. Journal of Legal Studies  loses to Harvard Law Review by 135–66, loses to Columbia Law Review by 109–92

5. Stanford Law Review  loses to Harvard Law Review by 167–27, loses to Journal of Legal Studies by 100–99

6. University of Chicago Law Review  loses to Harvard Law Review by 166–31, loses to Stanford Law Review by 106–79

7. Oxford Journal of Legal Studies  loses to Harvard Law Review by 129–65, loses to University of Chicago Law Review by 94–83

8. Michigan Law Review  loses to Harvard Law Review by 178–21, loses to Oxford Journal of Legal Studies by 89–85

9. New York University Law Review  loses to Harvard Law Review by 177–23, loses to Michigan Law Review by 101–71

10. Tied: Journal of Law & Economics  loses to Harvard Law Review by 142–56, loses to New York University Law Review by 92–85 Virginia Law Review  loses to Harvard Law Review by 177–20, loses to New York University Law Review by 95–74

Very interesting.  As one anonymous law and economics scholar and commenter to Professor Leiter’s post notes (it is not me), while JLS is a wonderful journal, I was a little surprised it came in so far ahead of JLE and JLE) (which appears further down the list).  Personally, if given the hypothetical choice I *think* I’d publish in JLE over just about any journal in that list — though the law reviews in the top 5 (Stanford, Columbia, Yale, Harvard) would be very tempting in order to reach a broader audience.

What do others think about the rankings?  For the antitrusters in particular, how about the following question: “What law review placement would make you indifferent to publishing in the Antitrust Law Journal?”  What about JLE for those doing antitrust law and economics?  How about other field specific journals, e.g. Antitrust Bulletin, Competition Policy International, and the Journal of Competition Law and Economics (in alphabetical order)?

Let me join Danny Sokol in congratulating Dan Crane in accepting a lateral offer at the University of Michigan.  Dan is one the clearest antitrust thinkers around and a bright star in the group of younger antitrust law profs.  I’m a big fan of his work.  But you don’t even have to go download all of his papers to get a sense of Dan’s work (though you should!), as he’ll be a participate in the TOTM blog symposium next week.  This is a great hire for Michigan. 

Maybe it was too easy anyway.  I mean, who hasn’t heard this one before?

Jinsoo Kim begins his opening brief by stating, “Blood may be thicker than water, but here it?s far weightier than a peppercorn.”1 Kim appeals from the trial court?s refusal to enforce a gratuitous promise, handwritten in his friend’s own blood, to repay money Kim loaned and lost in two failed business ventures. He faults the trial court for not discussing or deciding in its statement of decision the issue of whether Kim’s forbearance (waiting over a year to file a meritless lawsuit against his friend, Stephen Son), supplied adequate consideration for Son?s blood-written document.

Yikes.  HT: Volokh (via How Appealing).

I have a love/hate relationship with the wireless access in our law school classrooms. On the one hand, it saddens me that my students surf the Internet during class. On the other hand, Socratic dialogue goes so much faster when the students can IM each other answers. (Although I wish they’d be a little more subtle about it. It’s so obvious what’s going on when the student you’ve called on initially looks shocked and clueless but then glances down at her computer screen — not her casebook, where the answer may actually lie — and spits back a perfect answer.)

I was a little sad to learn from these NYU students that “no one IMs anymore.”

• Economist Philip Cook on alcohol control policy at the Volokh Conspiracy
• Alex Tabarrok on President-Elect Obama’s visit to George Mason
• Cass Sunstein to head OIRA (is this evidence that I was wrong that the Obama regulatory regime will be built upon an intellectual platform of behavioral law and economics?)
• Manfred Gabriel explains Hart-Scott-Rodino
• Tom Smith (the most entertaining law blogger around) on Krugman’s recent NYT piece (”Krugman has stooped to throwing around baseless accusations in a way that is a discredit to himself, the New York Times, Princeton and the Nobel Prize, and probably New Jersey as well.”)
• Gordon Smith gives advice to young law professors seeking tenure …

The new Competition Law Center at George Washington University School of Law (see earlier post at ACP here), funded by a $5.1 million cy pres award from alum and plaintiff’s lawyer Michael Hausfeld (formerly of Cohen, Milsten Hausfeld and Toll, now Cohen, Milsten, Sellers and Toll) will be providing some competition to the nearby American Antitrust Institute and Spencer Waller’s Institute for Consumer Antitrust Studies in the plaintiff, private enforcement and interventionist oriented product space.  This is a wonderful development from a competitive perspective — the space is highly concentrated and has long been dominated by AAI, which I’m quite sure is intellectually committed to being thrilled to see the increased competition in the battle for mindshare (and funding dollars) and influence over future antitrust policy.  More seriously, the AAI will be hosting an event on Antitrust in the New Administration, and has recently presented its Post-Chicago antitrust enforcement vision to the Transition team.  The upstart over at George Washington has some work to do.