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Abstract:
This chapter, which will appear in a forthcoming international anthology on consumer protection law, is a broad overview of United States consumer protection law and enforcement. It focuses on the utterly decentralized nature of consumer protection law in the U.S. and the combined roles of federal, state, local, and private law in deterring, detecting, and punishing deceptive and unfair conduct that injures consumers. It further summarizes federal, state, local, and private litigation options to obtain damages, restitution, and injunctive relief for consumers on an individual and class action basis. It ends with a partial list of consumer associations and other private non-profit group working in the consumer protection field.

consumer protection, consumer law, federal trade commission, class actions, restitution, private rights of action, warranties, fraud, unfair trade, deceptive trade practices

Abstract:
Our article examines an age old debate about the nature and limits of property rights and the current manifestation of this debate in antitrust law. Many areas of law struggle to balance private property rights - most importantly, the right of exclusion - with the public's right of access to essential resources. What is the best way to manage resources that provide both public and private benefits? For years, academics and law makers have debated this question with respect to transportation systems, communication networks, scientific research, and a variety of other infrastructural resources. Many press for private control of such resources, arguing that the market most efficiently distributes their respective costs and benefits. Others take the position that these resources should be managed in an openly accessible manner. Advocates for this approach maintain that private control often is overly restrictive and unfairly allocates benefits to a few private parties.

In the antitrust area, this tension is mediated by the essential facilities doctrine. Under certain circumstances a monopolist incurs antitrust liability in denying a competitor access to a facility under the exclusive control of the monopolist. While versions of this doctrine go back to the beginning of the antitrust laws, it has been heavily criticized by many commentators and by the Supreme Court itself in dicta.

In our article, we advocate for the revitalization of the essential facilities doctrine and answer these criticisms. Our article seeks to 1) connect the essential facilities debate in the antitrust field to the broader question of private rights versus open access in other areas of the law, particularly intellectual property law; 2) propose and apply an economic theory of infrastructure that comprehensively defines what facilities are essential and must be shared on an open and non-discriminatory basis; and 3) demonstrate that courts are capable of applying this test in antitrust and elsewhere.

antitrust, essential facilities, infrastructure, open access, intellectual property, refusals to deal

Abstract:
The Chicago School of Law and Economics is a leading example of a highly successful legal ideology. As one recent commentator has noted: "[T]he basic characteristic of the Chicago School is the belief that free markets and the price mechanism are the most effective and desirable ways for a society to organize production and economic life in general." The Chicago School of Law and Economics applies these insights to legal questions and views the creation and enforcement of legal rules primarily in terms of how legal rules and institutions promote allocative efficiency and wealth maximization.

While much ink has been spilled in chronicling the strengths and weaknesses of a Chicago School approach to particular legal problems, there has been far less analysis of why certain fields of law and legal jurisdiction have been prone to adopt a Chicago School approach and why others have been resistant.

This essay is the first step to analyze the successes and failures of the Chicago School in terms of the institutional characteristics of the fields of law where the Chicago School has had the most influence and those where it has encountered the most resistance. I argue that the institutional characteristics of the field of law are a more significant determinant of whether the Chicago School takes hold or is rejected than the correctness or the error of the substance of the analysis that it offers or the interests that it serves or opposes.

I use the metaphor of the virus to capture the dynamics of how the Chicago School has spread by penetrating a new area of the law, replicating itself, and transmitting itself to adjacent bodies of law and where it has been rejected. The viral metaphor is particularly apt as a tool to analyze the spread or rejection of legal ideology because it both describes and predicts how an outside influence gains entrance into a host body of law, uses the host to reproduce and spread within that body of law, and later expresses the now multiplied virus to other near by hosts.

This essay proceeds as follows. I first briefly summarize the development of the Chicago School of law and economics, analyze the importance and necessity of metaphoric reasoning in law, and explore the nature of the virus with an emphasis on how it attaches itself to and enters its hosts, replicates itself many times over using the host's own cellular structure to do so, and then expresses itself to carry on the process again and again with new hosts.

Part IV uses the viral metaphor to suggest two tentative hypotheses to explain the relative successes of the Chicago School in some fields and its relative failures to dominate the discourse in other fields. First, I contend that the more centralized the host body of law, the greater likelihood of success of a successful infection and the adoption of the new ideology. Second, I contend that the presence of a strong competing first principle in the host body of law will act as an effective antibody immunizing the host from the successful introduction of a new ideology, be it the Chicago School or other way of thinking and speaking about law.

I then test these hypotheses by examining a wide range of legal discourse where the Chicago School has been introduced. Examples drawn from US and European antitrust law, consumer protection, child and family law, and even Catholic Social Thought illustrate how my hypotheses help explain where the Chicago School has succeeded or failed in changing the legal discourse, or where it is simply too soon to tell. Part VI concludes with my reflections on how the viral metaphor can be extended as well as some ironies that the metaphor suggests about the future influence of the Chicago School itself.

Chicago School, law and economics, metaphor, virus, antitrust, European Union, competition law, consumer protection, child law, family law, Catholic Social Thought

Abstract:
This chapter from the forthcoming Antitrust Stories book deals with United States v. Aluminum Company of America which remains one of the standard chestnuts of American antitrust law. It appears in one form or another in virtually every antitrust law casebook and industrial organization economics textbook. Alcoa represents a lens in which we see what we want to see in the area of unilateral conduct, a reasonably efficient and innovative firm that created an entire industry or an aggressive monopolist preserving its position through a web of carefully constructed entry barriers including exclusive contracts, participation in international cartels, relentless expansion, and complete vertical integration. This chapter reviews the history of aluminum, its commercialization in the late 19th century, the colorful cast of players, and the many legal issues that led to nearly fifty years of government antitrust enforcement efforts against Alcoa. Alcoa became one of the first cases to crystallize thinking about Section 2 of the Sherman Act and the hard questions about how to define a market, what conduct of a monopolist should be prohibited, and what remedy should be imposed to best restore competition, questions that all continue to be debated today.

antitrust, monopolization, market definition, remedy, divestiture, effects doctrine, extraterritoriality

Abstract:
Competition and consumer protection law are intimately related, two sides of the same coin of consumer sovereignty and hence economic justice. Somewhat surprisingly, this relationship is only beginning to be recognized by academics and policy makers. Even more interestingly, the fundamental unity of competition and consumer protection law has been urged by both adherents and critics of the Chicago school leaving open the question of how the laws should be harmonized and enforced. In this essay, I survey the competing models at the federal and state level as to how competition and consumer protection are occasionally integrated and more commonly viewed as independent bodies of law. I briefly explore the reasons for this confusion which are more historical and institutional rather than theoretical. I conclude with suggestions for more closely integrating the two bodies of law both in the United States and abroad in a way that furthers the tangible rather than theoretical interests of consumers.

Antitrust, Consumer Protection, Law and Economics, Economic Justice

Abstract:
The late Phillip Areeda's 1990 article Essential Facilities: An Epithet in Need of Limiting Principles has had a profound impact on the development on the essential facilities doctrine in antitrust law. It has become the intellectual basis for the critique and roll back of a doctrine that has been around for approximately the same amount of time as the rule of reason. Apart from Professor Areeda's distinguished stature in the antitrust field, there was little reason to think this short essay would represent the start of a sea change in antitrust. The article was a short symposium piece based on a panel discussion held at a Fall 1989 program of the ABA Antitrust Section. Moreover, Professor Areeda's comments somewhat bucked the trend of the contemporary case law, commentary, and the remarks of the other panelists. Although Professor Areeda was not altogether negative about the essential facilities doctrine, his article has proved to be one of the influential pieces in the canon of antitrust literature and represented the beginning of a counter-revolution in antitrust thought that has left the essential facilities doctrine, charitably speaking, hanging by a thread. In this article, I want to critically reexamine Areeda's analysis of the essential facilities doctrine and suggest that while many of his concerns were valid in the time of its publication, most of his concerns are no longer applicable in today's antitrust climate. Other of Professor Areeda's concerns were overblown to begin with, and more significantly, most have been taken out of context by critics of the essential facilities doctrine. Part II briefly summarizes the essential facilities doctrine in US antitrust law. Part III then summarizes Professor Areeda's critique of the doctrine. Part IV examines how the Areeda critique has been used in the subsequent case law and scholarly debate beyond the more limited critique he may have envisioned. Parts V and VI suggest there is a better way based on infrastructure theory which responds to most, if not all, of Professor Areeda's legitimate critiques and creates a sound theoretical basis for an economically based essential facilities doctrine. Infrastructure theory better ties the essential facilities doctrine to related doctrines in other areas of the law and suggests that essential facilities doctrine is one of better, not worse, ideas that antitrust has offered in its 100 plus years.

Phillip Areeda, essential faciltiies doctrine, infrastructure, monopolization, conspiracy, antitrust

Abstract:
Virtually every jurisdiction is considering the most appropriate role for private rights of actions for damages for competition violations. The United States is in the midst of reexamining these issues in the context of the Antitrust Modernization Commission created by Congress. The European Commission is nearing the conclusion of its lengthy review of the proper role of private damage actions in member state courts. Other jurisdictions both new and old to competition enforcement are wrestling with whether and how to implement effective private enforcement.

Some private rights of actions are a necessary compliment to the public enforcement of competition law, but that the precise shape and extent of those rights is heavily dependent on the unique law, history, judiciary, and legal culture of each jurisdiction. At a minimum, some form of damage action for indirect purchasers and some method of class action or other form of aggregate litigation is necessary to have an effective private damage right. It is most ironic that the United States is seeking to restrict those rights of actions precisely at the same time that most of the rest of the world is seeking to expand private rights of actions to supplement existing public enforcement regimes. Neither public or private enforcement should "monopolize" competition law, but must work together to deter, detect, punish, and compensate victims of unlawful anticompetitive conduct.

antitrust, private enforcement, damage actions, indirect purchasers, class actions

Abstract:
On Friday, October 5th, 2007 over two dozen antitrust scholars from Europe and North America met at Loyola University Chicago to discuss the comparative state of monopolization law. This meeting, co-sponsored by the Loyola University Chicago Institute for Consumer Antitrust Studies and British Institute of International and Comparative Law, revolved around findings of the Antitrust Modernization Committee and a series of issue papers created for the panel discussion itself.

What follows is an edited transcript of the panel discussion. The Issue papers prepared for the discussion define the scope of each segment and precede each of the four sections of the transcript. The papers and the discussion include The Role of Monopolization; Proof of Market Power and Consumer Harm; The Monopolization Offense; and Remedies.

antitrust, competition law, market power, monopolization, abuse of dominance, EU, cartels, market definition, divestiture, structural remedies, essential facilities

Abstract:
The prominence of OPEC and its continuing efforts to restrict world-wide oil production with its attendant effects on price make it an inviting target from the point of view of US antitrust law yet the federal government has never taken enforcement action against OPEC or its member states. There have only been two private antitrust suits, one unsuccessful in the 1970s and one recently vacated default judgment injunction against OPEC as an organization now being litigated on the merits, which even if upheld is likely to be ineffective in the real world. It is widely believed that sovereign immunity, the act of state doctrine and other special international defenses preclude suit against OPEC and its member nations. This article analyzes why in fact there are no legal doctrinal barriers to such a suit by certain plaintiffs seeking certain kinds of relief, but that such action would be ineffectual, counterproductive, and against the overall interests of the US.

Abstract:
This on-line casebook examines the fields of international antitrust and international trade law. In general, it examines how the United States and other jurisdictions regulate competition among firms which do business abroad. This will include how competition policy regulates individuals and firms located outside the United States in their competition with United States firms as well as the rules governing United States firms.

These materials are intended for use in a U.S. style law school class or seminar and designed to provide the base knowledge necessary to engage in sophisticated research in the field and to produce a research based paper of 20-25 pages in length. By necessity, these materials are in English and have primarily a United States focus. The value of an on-line casebook in this field goes beyond the merely the cost savings and convenience. It is also an opportunity for a collaborative exercise that will allow for the creation of a more in-depth and creative set of materials that can be done in traditional hard cover format. Use of the casebook for educational purposes with attribution is available on a royalty-free basis under a Creative Commons Attribution-Share Alike 3.0 United States License. For all other uses please contact Professor Waller at the Institute for Consumer Antitrust Studies at Loyola University Chicago School of Law.

I therefore invite any competition law teacher or scholar to submit additional chapters on other competition law topics or jurisdictions not covered in these materials for inclusion in future iterations of these materials. Materials must be original or accompanied with proof of permission/license to use for this purpose and be in English and in either Word or Word Perfect. Submission of materials constitutes your permission to include the material in future editions of the on-line casebook for educational purposes with attribution available on a royalty-free basis under a Creative Commons Attribution-Share Alike 3.0 United States License.

Submission of materials also constitutes permission to edit the submitted material for style, content, and compatibility with the existing text, although every reasonable effort will be made to allow you to review edited material before posting on-line. I look forward to working with the global competition law and policy community to make this the most effective and interesting teaching tool possible.

competition law, antitrust, international trade, international antitrust, comity, jurisdiction, antitrust cooperation, harmonization

Abstract:
There remains a broad conflict over the direction of future progress in international competition law. This conflict is exemplified by the very different tone and recommendation of expert commentators such as Judge Diane Wood and Eleanor Fox. This conflict is generally portrayed as a dichotomous choice between the position advocated by the European Union (EU) and its supporters in favor of a true international antitrust code, or at least an optional code enforced by the World Trade Organization (WTO) through its dispute resolution process, and the position of the United States in favor of a cautious approach emphasizing bilateral cooperation, slow harmonization, a search for consensus, as well as a preference for further study in lieu of action at this time.

Both positions are well described in a variety of academic policy and official publications. The EU position has been articulated by such notables as Leon Britten, ErnstUlrich Petersmann, and Karol von Miert.The recent United States champions include Joel Klein, Charles Stark, Douglas Melamed among others.

In this article I explore some of the serious objections that the United States has raised to the negotiation of an international set of antitrust rules and the delegation of their enforcement to the WTO. I will suggest some ways to take these objections into account, but still allow for progress, and a modest role for organizations like the WTO in promoting competition in global markets and resolving competition disputes, without having to create a full international antitrust code.

antitrust, international antitrust, European Union, World Trade Organization, harmonization, competition law, antitrust cooperation

Abstract:
The United States and the rest of the world have taken markedly different views of the essential facilities doctrine in recent years. Although the essential facility doctrine has many defenders in the United States, it has been criticized by the Supreme Court in dicta, in the report of the Antitrust Modernization Commission, and the more recent monopoly report of the Bush administration Justice Department.

The situation is quite different everywhere else. In Europe, the essential facilities doctrine, also called unilateral refusals to deal, has been applied over the past thirty years by the European Commission, the Court of First Instance, the European Court of Justice, and increasingly courts of the twenty-seven Member States. In addition, the European Commission’s recently-issued draft guidelines on the abuse of dominance endorse the doctrine and sensibly describe its application and limitations.

The situation is similar in countries outside of the European Union. Most jurisdictions, both common law and civil law, apply some form of the essential facility doctrine to unjustifiable denials of access to infrastructure and other forms of facilities that are impossible to duplicate, but nonetheless essential for competition.

Of course, just because everyone does something does not make it right. However, there is a growing international consensus that it is sometimes appropriate to require a regime of nondiscriminatory access to infrastructure and related facilities. The extent to which the international community is applying some version of the essential facilities doctrine in a thoughtful and consistent manner suggests that the United States is an outlier and should rethink its position. A revitalized essential facilities doctrine more in line with the international consensus would be beneficial domestically as well as internationally.

In this essay, we look briefly at the law of the essential facilities doctrine in the United States and abroad in order to analyze which jurisdictions have applied these rules in a sensible and economically efficient manner, and which have used the doctrine in a more ad hoc and arbitrary fashion. Part One analyzes the situation in the United States. Part Two examines the law of essential facilities and unilateral refusals to deal in the European Union and its member states. Part Three looks at the rest of the world and the variety of approaches followed in diverse common and civil law jurisdictions that have examined this question. Part Four looks at the prospects for harmonization of these divergent approaches through the International Competition Network and the more constructive role that the United States must play if these efforts are to be successful. Part Five offers substantive suggestions to better harmonize U.S. law and practice with the developing consensus that antitrust law has an important role to play when dominant firms deny access to essential facilities in economically and socially harmful ways.

Abstract:
In this comment for an upcoming symposium in the Utah Law Review in honor of the retirement of John Flynn, I examine the 2001 opinion of the DC Circuit in Microsoft and the Supreme Court's 2004 opinion in Trinko and compare them as attempts to comprehensively define the law of monopolization. Using the insights of the legal process school, I examine which opinion succeeds as a form of reasoned elaboration and which opinion will gain acceptance among lower courts and commentators in this vital area of antitrust law. I conclude that the Microsoft opinion should stand the test of time as a rigorous, intellectually honest, and well reasoned synthesis of the law of monopolization. In contrast, Trinko suffers from numerous errors of law, fact, economics, antitrust policy, and contains much unreasoned dicta that extends far beyond its narrow holding about the interface between antitrust and telecommunication regulation. Trinko thus fails the test of reasoned elaboration, one of the key hallmarks of a legitimate and persuasive judicial opinion.

antitrust, jurisprudence, law and economics

Abstract:
Antitrust began with the common law tort of restraint of trade but has long since separated itself from the rest of tort law, particularly in the area of punishment. Since the passage of the Sherman Act in 1890, the principal remedies for antitrust violations have been criminal penalties and private treble damage suits. Antitrust stands relatively unique in the American tort universe with its treble damage remedy, its lack of punitive damages, its rejection of in pari delicto defenses, the peculiar combination of joint and several liability, the lack of contribution, and the way that settlements are credited against the potential liability of the remaining defendants in a case.

What has happened over the past 115 years is that the level of criminal punishment, both in terms of imprisonment of individuals and fines for corporations, has increased dramatically along with the vigor of government criminal enforcement of the antitrust laws. On the private side, the vigorousness of private treble damage litigation has waxed and waned depending on a number of factors, including the degree of activity by the federal government bringing illegal activity to light as well as the expansion and contraction of both substantive theories of liability and of standing.

As a result, there is a vigorous debate within antitrust law and policy whether the total punishment and compensation embodied in this system is too high or too low. Rather than reenter that debate about a system that is unlikely to change, I address a different and less frequently discussed issue - the incoherence of the present system of public and private antitrust enforcement.

We have reached a point where certain conduct prohibited by the antitrust laws is indeed punished harshly, yet other violations of the laws are effectively immune from punishment because of an evolving system of government enforcement priorities, substantive changes in the standards of liabilities, and restrictive rules of standing and antitrust injury which place some violations beyond effective change. Even some per se violations of the rule are beyond the reach of any meaningful punishment. It is not that antitrust damages are necessarily too high or too low, it is that they vary dramatically and that there is no a priori way to predict where punishment in a particular case or for a particular defendant will come out. This is the real but overlooked incoherence of antitrust punishment.

antitrust, punishment, compensation, deterrence, disgorgement, remedies, treble damages, private rights of action

Abstract:
Over the past thirty plus years Justice Stevens has played a special role in the jurisprudence of antitrust. He came to the Supreme Court after a successful career as an antitrust litigator, scholar, law teacher, and federal appellate judge. Justice Stevens applied the special insights this background provided to articulate a unique voice in shaping antitrust. While much of the antitrust debate since World War II has concerned the proper legal standard for assessing the competitive impact of agreements under the antitrust laws, Justice Stevens has focused much of his analytical work for the Court on a more sophisticated, but no less important, question - how should a court actually determine whether an agreement unreasonably restricts competition in violation of the antitrust laws. In antitrust terms, the question for Stevens was not so much whether the per se rule or the rule of reason applied in a particular case, but what does the rule of reason actually mean and how should it be applied. In this article, I examine the distinctive voice Justice Stevens brought to antitrust, some of the personal and professional influences that created this voice; and the impact of Justice Stevens on the antitrust jurisprudence of the Supreme Court in defining the rule of reason and its application. I argue that Stevens, more than any Justice, helped define the rule of reason as a single unitary continuum in analyzing agreements under Section 1 of the Sherman Act and further defined what counted as potential legitimate justifications under the rule. Part I lays out Justice Stevens's student and early professional career and the influence that Professor James Rahl of Northwestern University School of Law had on Justice Stevens and his antitrust philosophy. Part II analyzes the litigation practice, scholarly writing, and limited antitrust appellate opinions of then Judge Stevens for further clues as to his evolving antitrust philosophy. Part III examines the numerous Supreme Court opinions authored by Justice Stevens which analyze the critical issue of what the rule of reason actually means when it applies in a case. Finally, I conclude that Justice Stevens' most important contribution in antitrust was to redefine the rule of reason from an empty analytical box in which defendants automatically prevailed into the core tool of modern antitrust law in which courts conduct a more meaningful analysis of the competitive impact of agreements.

Justice Stevens, John Paul Stevens, James Rahl, antitrust, Sherman Act, rule of reason, competition, competitive effects

Abstract:
In this comment arising out of a 2005 conference at the University of Western Ontario on the growth of competition class actions, I discuss the American experience in this area. I first respond to two excellent papers from Professors Robert Klonoff and William Page on different aspects of the American class action experience. I then discuss the anticipated effect of the Class Action Fairness Act on private antitrust enforcement. I conclude with advice for new jurisdictions adopting class action type mechanisms, particularly the need to incorporate standing for indirect purchasers. The full symposium on this issue can be found at 3 Canadian Class Action Review (2006).

class actions, competition law, antitrust law, indirect purchasers, class certification, class action fairness act

Abstract:
A well understood theory of remedies in monopolization and abuse of dominance cases does not exist at present in either the case law or the academic literature and may not even be possible. The most likely explanation is that monopolization cases and abuse of dominance cases (particularly successful ones) are relatively rare birds. While these cases are of great importance, they arise only episodically and rarely in the same industries, making comparisons between different industries and time periods not very helpful. In this essay, I first survey the principal types of remedies that have been imposed in monopolization cases over the past century. I then look at the current state of monopolization law and remedies. Finally I briefly address a likely future that focuses on information and access as a form of virtual, rather than physical, divestiture as a critical issue for the courts and enforcers to resolve through innovative compliance mechanisms.

antitrust, monopolization, remedies, divestiture, criminal enforcement, injunctions, behavioral relief, structural relief, Alcoa, access, interconnection, Microsoft

Abstract:
In 1975, the University of Pennsylvania published a remarkable item. Rather than being deemed an article, note, or comment, it was classified as an "Aside." The item was of course, The Common Law Origins of the Infield Fly Rule. This piece of legal scholarship was remarkable in numerous ways. First, it was published anonymously and the author's identity was not known publicly for decades. Second, it was genuinely funny, perhaps one of the funniest pieces of true scholarship in a field dominated mostly by turgid prose and ineffective attempts at humor by way of cutesy titles or bad puns. Third, it was short and to the point in a field in which a reader new to law reviews would assume that authors are paid by the word or footnote. Fourth, the article was learned and actually about something - how baseball's infield fly rule is consistent with, and an example of, the common law processes of rule creation and legal reasoning in the Anglo-American tradition.

The article also was the launching point of the Law and Baseball movement. Legal scholars simply cannot keep their hands off the infield fly rule - either substantively or as a metaphor. An eminent antitrust scholar quickly responded to the Aside, arguing that the infield fly rule was in fact the product of law and economics concerns about efficiency (and potentially other more humanistic concerns) and that the Aside was fatally flawed in portraying the infield fly rule as inevitable or the product of a scientific legal regime. Metaphorically, the infield fly rule also has been used to analyze legal problems in tax, evidence, labor law, constitutional law, e-commerce, and the law of prostitution, as well as topics in areas as far afield as linguistics. It has been utilized to analyze problems in cases ranging from the law of sexual harassment to the law governing compromise and settlement. Indeed, the infield fly rule has even been cited as a possible topic of political protest and has been cited in religious sermons. The Common Law Origins of the Infield Fly Rule has been widely cited in articles dealing with both baseball and such diverse other subjects as legal theory, legal history, bankruptcy, criminal law, civil rights, constitutional law, and legal citation.

For all its greatness, though, Common Law Origins is a creature of its time. Written with reference only to common law reasoning, it bears a striking resemblance to the legal process school's conception of the proper development of law through a process of politically neutral reasoned elaboration. Even in 1975, the concept of the Legal Process school as the appropriate jurisprudential tool to view law was under heavy attack. Moreover, Common Law Origins appears to have deliberately chosen not to address earlier jurisprudential movements such as legal positivism, legal realism, and natural law which would have offered quite different explorations for the evolution and significance of the infield fly rule. In addition, the Aside was published in 1975 at the very beginning of the flowering of what is now often referred to as Post-Modern jurisprudence with its many different approaches to challenging legal orthodoxy. Such challenges can be found in an array of sources ranging from law and economics, critical legal studies, feminist jurisprudence, and cultural studies.

We propose to go beyond the common law origins of the infield fly rule and do what the author chose not to do: namely, explore the different spaces for an infield fly rule from the point of view of the great jurisprudential movements of the last hundred years. In so doing we conclude (i) that post-modern jurisprudence strongly suggests that the infield fly rule was far more socially constructed and historically contingent than previously acknowledged, and (ii) that it is much more difficult to be clever, funny, and insightful about Law and Baseball than it appears.

baseball, jurisprudence, legal philosophy

Abstract:
As a result of the program of social, political, and economic reforms called doi moi" (meaning renovation) implemented by the Communist Party in 1986, market forces have been allowed to operate in Vietnam subject to state supervision. The centerpiece of doi moi has been to attract foreign investment. The results of this reform, as this brief article will show, have been mixed: South Vietnam has had far more success attracting foreign investors than North Vietnam, and much of the foreign capital has flowed to the urban areas, leaving the countryside woefully underdeveloped.

Even where development has progressed, however, the legal and other infrastructure has been inadequate to sustain the needs of a complex market economy. Furthermore, economic liberalization has not been followed by the same degree of political liberalizatin. Lastly, in pursuit of most-favored-nation [MFN] status, Vietnam has felt compelled to let the United States dictate the terms of trade, especially with regard to the enforcement of intellectual property rights. Vietnam, however, is still a poor country in which a black market for counterfeit goods thrives, partially because foreign brand-name goods are simply not affordable to the average citizen.

In Section I, we provide a general sketch of the role which foreign legal experts play in the law reform of transitional legal systems. In Sections II and III, we relate, through a series of vignettes, our experiences lecturing on U.S. law topics to Vietnamese law students and legal academics and conversing with ordinary Vietnamese citizens. Lastly, in Section IV, we reflect on the flourishing black market in consumer products in Vietnam and the futility of the current U.S. policy of making intellectual property rights enforcement the sine qua non of its trade strategy with Vietnam.

Vietnam, Doi Moi, law reform, rule of law, foreign investment, intellectual property, black market, WTO, MFN

Abstract:
Five great attempts have been made to achieve a true international harmonization of competition law in the twentieth century. None has been successful. Despite the failures of the League of Nations, the International Trade Organization (ITO), the Economic and Social Council of the United Nations, the Organization for Economic Cooperation and Development (OECD) and the United Nations Conference on Trade and Development, the groundswell for a new round of harmonization efforts has begun again. The 1990s blueprint for international harmonization of antitrust law includes proposals for changing the jurisdiction over transnational anticompetitive behavior, the procedures for investigation of transnational competition matters and the substance of competition law, and suggestions for promoting antitrust enforcement in foreign markets as a means to enhance United States export and investment opportunities.

The most recent attempts have proceeded very differently from past efforts in this area. First, the growing recognition of links between competition policy and trade policy has focused attention on competition as a fitting topic for consideration by national trade policy planners and international trade institutions like the World Trade Organization and other bodies. Second, the growing number of countries that enforce reasonably comprehensive and sophisticated systems of competition law has produced pressure from the business community and national governments to work toward more uniform systems of notification by private parties and greater cooperation between national authorities, and has created a desire for more uniform rules of both jurisdiction and substantive law. Third, continuing conflict between nations over the investigation and enforcement of competition provisions that affect important national interests provides a further impetus for harmonization. Finally, the adoption of new competition regimes in the developing market economies in eastern Europe, the former Soviet Union and throughout the developing nations of the world has invited discussion about the most appropriate content for such laws in new and diverse settings.

In this Article, I look at the transferability of law from one nation and culture to another in the context of the current movement both to harmonize and to internationalize competition law, particularly as it has developed in the United States and the European Union. Part II analyzes the transferability of national law from a number of historical and philosophical perspectives, focusing on the ideas first developed by Montesquieu and debated by comparative law scholars from Montesquieu's time to our own. Parts III, IV and V critically examine the explicit and implicit assumptions that United States antitrust law can or should serve as a model for competition law for the rest of the world. Part VI offers suggestions for the process that central and eastern European nations, and other developing market economies, should use in developing indigenous competition regimes.

I end with a call for a neo-realist approach to harmonizing international economic law. Such an approach applies much of the teaching of the legal realism movement in American jurisprudence to identify the values and governance norms underlying technical rules of competition law. Neo-realism also requires a new conception for the expert in comparative competition law and a new focus on the harmonization of values and norms in place of a wasteful search for a common global text of competition law.

antitrust, international economic law, Montesquieu, harmonization, legal realism, legal transplants, comparative law, New Haven School, GATT, EU, OECD, Sherman Act, competition law

Abstract:
Antitrust enforcement is entering a period of transition in the United States. The election of Barack Obama as President and his executive branch, regulatory, and judicial appointments will have importance consequences for antitrust law and enforcement, although most observers believe that these changes will be relatively modest both substantively and in comparison to matters of banking reform and economic stimulus.

As part of that process of change, there has been no shortage of advice offered to first the Obama transition team, and now the Administration, about how to handle competition policy going forward. Two of the more substantial efforts in this regard come from well established antitrust groups with very different perspectives and memberships. Both the Antitrust Section of the American Bar Association and the American Antitrust Institute have offered sophisticated lengthy public advice to the new Administration on how best to proceed in the competition law field. The reports are very different in nature and reflect the different nature of the institutions that prepared them. This essay takes a brief look at the transition reports offered by each organization and the vision they would offer the new Administration.

Obama, transition reports, antitrust, competition policy, Antitrust Division, Federal Trade Comission, Antitrust Section Section, American Antitrust Institute, cartels, monopolization, mergers, health care, energy, media

Abstract:
Antitrust for most of the past seventy years has relied heavily on economic discourse, and on price theory in particular in recent times. There have been fierce debates on what types of economics are the most useful and whether other values inform antitrust law and policy, but economics has reigned supreme, especially during the modern era.

This is quite peculiar in the following sense. Antitrust is a body of law that regulates business behavior, but antitrust has adopted a language both different, and at odds with, the language of the very people being regulated. Even worse, antitrust has chosen a unique discourse that is self-denying as to one of the very essences of antitrust enforcement. Price theory is inherently suspicious of the claim that market power is achievable. In contrast, business leaders are trained in undergraduate and graduate business programs that the very opposite is true: that market power is achievable and various business and management theories provide a sound analytical basis for achieving such power in the real world.

This article is both a history and genealogy of the discourse used in the discipline of antitrust law. My thesis is that antitrust adopted economics as its primary discourse as part of the creation of a separate discipline of antitrust law, separate from a general field of business law or corporate and securities law. The split began in the 1920s and came to full fruition in the1950s. Without suggesting that this was a conscious or deliberate choice, antitrust evolved into a new speciality field with its own players, its own professional organizations, its own status games and hierarchies, and most importantly, its own language. Economics became that language as part of a process of separation from the general business bar which remained tied to the language of business, a language that was increasingly discredited socially and professionally during the Great Depression, the key period when antitrust became its own field.

My paper is also a plea for a more inclusive discourse for modern antitrust. Business people are versed from the first days of business school in the language and techniques of such techniques as strategic planning and brand management. They strive for and often achieve (at least in their view) significant lasting market power. As the Chicago school style of law and economics loses its vise grip on the discipline of antitrust, lawyers, judges, and policy makers need to be conversant with all facets of business theory and discourse, not just economic theory. In short, the decision makers we regulate take this stuff seriously, so should we.

antitrust, jurisprudence, law and economics

Abstract:
There has been relatively little written applying the insights of legal realism to international law, particularly international economic law. Professor Gregory Shaffer has admirably filled his gap in his excellent book, Defending Interests: Public-Private Partnerships in WTO Litigation. In my review, I identify the strengths of the book and how it bodes well for the future of international economic law scholarship.

international economic law, WTO, dispute settlement, legal realism

Abstract:
The following is a compilation of book reviews and notices of notable books I have prepared over the past three years as U.S. Book Review editor for the World Competition Law & Economics Review and for the web site for the Institute for Consumer Antitrust Studies at Loyola University Chicago. All are short, none are deeply analytical. However, they all highlight recently published work that addresses different needs of the academic and practicing bar, and even includes a book or two of general interest to antitrust professionals. This is not intended as a comprehensive list of publications in the field but rather those that crossed my desk and appealed to me enough to delve into sufficiently to review. In particular, time did not permit me to review all the new publications by the ABA Antitrust Section or all the new casebooks and new editions of existing casebooks except where noted below. The reviews are arranged by date of publication and include:

1) Einer Elhauge, United States Antitrust Law and Economics (Foundation Press 2008); Einer Elhauge & Damien Geradin, Global Antitrust Law and Economics (Foundation Press 2007).

2) Handbook of Antitrust Economics (Paolo Buccirossi ed. The MIT Press 2008).

3) Edwin Rockefeller, The Antitrust Religion (Cato Institute 2007).

4) Thomas K. McGraw, Prophet of Innovation: Joseph Schumpeter and Creative Destruction (The Belknap Press of Harvard University Press, 2007).

5) William H. Page & John E. Lopatka, The Microsoft Case: Antitrust, High Technology, and Consumer Welfare (The University of Chicago Press 2007).

6) ABA Section of Antitrust Law, Intellectual Property and Antitrust Handbook (2007).

7) Gary Myers, The Intersection of Antitrust and Intellectual Property: Cases and Materials (Thomson/West 2007).

8) Antitrust Policy and Vertical Restraints (Robert Hahn, ed. AEI, Brookings Joint Center for Regulatory Studies 2006).

9) William C. Holmes, Antitrust Law Handbook 2007 Edition (Thomson/West 2006); William C. Holmes & Dawn E. Holmes, Antitrust Law Sourcebook for the United States and Europe 2007 Edition (Thomson/West 2006).

10) Reza R. Dibadj, Rescuing Regulation (State University of New York Press 2006).

11) Ky P. Ewing, Jr., Competition Rules for the 21st Century: Principles from America's Experience (2d ed. Kluwer Law International 2006).

12) ABA Section of Antitrust Law, The Merger Review Process: A Step-by-Step Guide to U.S. and Foreign Merger Review (3d ed. 2006); ABA Section of Antitrust Law, Premerger Coordination: The Emerging Law of Gun Jumping and Information Exchange (2006); Joint Ventures: Antitrust Analysis of Collaborations Among Competitors (2006).

Schumpeter, antitrust, merger review, joint ventures, gun jumping, law and economics, microsoft, innovation, intellectual property, vertical restraints, regulation

Abstract:
This essay comments on three different articles offered by Diane Wood, Eleanor Fox and Peter Kunzlik at a symposium at the University of Minnesota in honor of the work of E. Thomas Sullivan. Each of the three articles provides different perspectives on the desirability and likelihood of the international harmonization of antitrust law. My comment uses public choice to tie together these three seemingly diverse approaches and to apply public choice theory to examine how, where, and why harmonization of competition law and policy has succeeded or failed.

antitrust, competition law, harmonization, WTO, International Competition Network, OECD, soft harmonization, European Union, public choice, jurisdiction, cartels, leniency, amnesty

Abstract:
This article analyzes past efforts to create an internatiional competition law system and then suggests a modest approach toward instituting such a system. Part I discusses both the failed attempts to achieve a true international or harmonized competition law and the greater success of regional efforts. Part II discusses the limited success of antitrust cooperation on a multilateral and explores the more successful regional and bilateral cooperation agreements. Part III examines the governmental, business, and institutional pressures for and against further harmonization or cooperation. Part IV suggests three scenarios under which harmonization and the creation of international antitrust rules are most likely to succeed. Finally, Part V advoctaes the modest goal of an international competiton system that requires each nation to have an effective competition law and to enforce it in a non-discriminatory manner, comporting with existing standards of national and most-favored nation treatment as those terms are understod in international economic law.

antitrust, harmonization, cooperation, international antitrust, international trade, World Trade Organization

Abstract:
On Friday, April 11th, 2008, the second leg of the Antitrust Marathon took place. A number of antitrust practitioners and scholars from Europe and North America met at the Competition Appeal Tribunal in London to discuss the comparative state of monopolization law. This meeting, co-sponsored by the Loyola University Chicago Institute for Consumer Antitrust Studies and the British Institute of International and Comparative Law, centred around four discussions: (i) 'European Economic Freedom: American Structuralism Revisited? What Room for Consumer Harm?'; (ii) 'Abuse vs Non-horizontal Mergers: Conflicting Theories of Harm?'; (iii) 'Bundling: Are US and European Views Converging?'; and (iv) 'Remedies'.

What follows is an edited transcript of the panel discussion. The issue papers prepared for the discussion define the scope of each segment and precede the relevant sections of the transcript.

antitrust, competition law, market power, monopolization, abuse of dominance, EU law, mergers, economic freedom, bundling, remedies, divestiture, structural remedies, theories of harm

Abstract:
Neil Averitt and Robert Lande have for some time been writing about consumer choice as a new paradigm for antitrust. In this comment, I both praise and extend the consumer choice paradigm and provide concrete examples of both cutting edge and familiar antitrust issues where consumer choice can help anchor sound antitrust decision-making by both the enforcement agencies and the courts.

antitrust, consumer choice, non-price restraints, resale price maintenance, monopolization, price discrimination

Abstract:
The Department of Justice ("DOJ") monopoly report is enormously disappointing for a number of reasons. The Federal Trade Commission ("FTC") was wise to participate in this important project, but equally wise to distance itself from the final work product. The final report represents a serious effort, but reads in too many places like a justification for a record of inaction by the DOJ and an attempt to lock in future administrations to a similar course.

I suspect that the report will achieve neither of these goals and hope that the DOJ's Antitrust Division of the next administration rejoins the FTC in bringing both innovative and traditional monopolization investigations and cases where appropriate.

Department of Justice, DOJ, Federal Trade Commission, FTC, monopoly, monopolization, single firm conduct, unilateral conduct, refusal to deal, essential facilities, EU, competition law, antitrust, comparative law, comparative competition law

Abstract:
At first glance, Holmes's general prominence in American jurisprudence does not appear to carry over into antitrust law. His antitrust opinions often appear to a modern reader perverse. Early in his tenure on the Supreme Court, he opined in his famous dissent in Northern Securities Co. v. United States that the Sherman Act "says nothing about competition." His private correspondence contains references to the Sherman Act as "noxious humbug" and "absurd." A survey of his antitrust opinions finds Holmes squarely against the grain of mainstream antitrust law regarding the purpose of the antitrust laws, price agreements between competitors, information exchanges among competitors, resale price maintenance, the meaning of interstate commerce, the extraterritorial application of the Sherman Act, the defense of in pari delicto, the meaning and impact of the Clayton Act, and antitrust issues involving intellectual property. This article views Holmes and his antitrust opinions as more than an amusing anachronism. The article traces Holmes's Supreme Court antitrust opinions and dissents as a well formed personal expression of a skepticism of the desirability of unbridled competition as either economic or social policy and an abiding faith in combination as the true nature of social progress.

Oliver Wendell Holmes, antitrust, restraint of trade, monopolization, mergers, acquisitions. combination, interstate commerce, rule of reason, vertical restraints, labor, exemptions

Abstract:
This article analyzes one of the most contentious issues over the past fifty years in international economic law - the extent to which a nation may apply its law on an extraterritorial basis and the limits, if any, posed by the doctrine of international comity. This article examines the reasons why the doctrine of international comity once represented the primary battleground for conflict over the extent of permissible extraterritoriality in U.S. antitrust law, but no longer represents the forefront of current thought on this important issue.

The article argues that the retrenchment of U.S. enforcement policy in foreign commerce antitrust cases, the diminution of comity in private antitrust cases, the failure of U.S. courts to apply comity during its heyday in a coherent and principled manner, the spread of anti-cartel norms and extraterritoriality to other antitrust jurisdictions, the rise of more practical concerns in foreign commerce antitrust cases, and the emergence of new issues relating to competition law in transition economies and in international organizations all contributed to the demise of comity as a controversial issue. This article concludes that the proponents of a broad role for international comity achieved a partial, but important, victory that laid the groundwork for the future agenda of international competition law.

international economic law, antitrust, foreign commerce, effects doctrine,extraterritoriality, comity, cooperation agremeents, cartels, ICPAC, OECD

Abstract:
Antitrust has been impoverished as a discipline by systematically devaluing business discourse in favor of a nearly exclusive reliance on one form of economics as its guiding discipline. I have previously discussed elsewhere the historical reasons why antitrust has ignored the theories that motivate the very decision makers whose behavior antitrust seeks to motivate. See Spencer Weber Waller, The Language of Law and the Language of Business, 52 Case. W. L. Rev. 283 (2001), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=253732&high=%20spencer%20waller.

In this paper, I discuss how business theory is becoming an increasingly valuable tool for antitrust analysis. I primarily analyze two recent cases. In the first case, Conwood Tobacco, a knowledge of modern marketing is necessary to understand the facts and legal liability at issue. In the second case, LePage's, business theory would have provided both plaintiffs and defendants in a controversial bundling case with better tools to argue their position. Finally, I conclude with a briefer look at a series of other cases where business theory issues have been raised and would have been a valuable addition to the standard tools of antitrust analysis.

antitrust, business theory, law and economics, marketing, bundling, antitrust litigation

Abstract:
This short essay makes a plea for a comparative approach to the formulation of competition policy as an important type of empiricism. The United States is no longer alone, or even unusual, in having a robust form of competition policy. Competition law has enjoyed unparalleled growth throughout the world over the past twenty years. Virtually every western developed nation has created a sophisticated legal system capable of dealing with restrictive agreements, abuses of market power, as well as the notification and regulation of mergers and acquisitions that pose the threat of lessening competition.

The United States is out of step with the rest of the world's competition community in two important ways, At a time when the rest of the world looks to competition law for its transformative and normative potential, the United States remains locked into a narrow vision geared largely to the reflexive application of various competing microeconomic theories. While in many ways United States antitrust has reached an impasse without any visible solution, it is the rest of the world that looks to antitrust for answers to the fundamental questions about how to control economic power in their society, the role and limits of markets and economic activity in a democracy, and the political role and consequences of antitrust rules.

comparative competition law, competition law, antitrust, European Union, empirical research, private rights of action

Abstract:
The United States has pursued an ad hoc strategy in dealing with dying firms, dying industries, and industrial rationalization from an antitrust perspective. While formal antitrust doctrine does not permit consideration of factors other than the impact on competition, prosecutorial discretion has permitted from time to time a consideration of more general public interest factors.

The foreign treatment of failing firms and failing industries is a particularly important area to consider given that the US approach is so different from that of the rest of the world. Most foreign systems permit the consideration of more general social and public-interest factors in deciding the legality of an agreement or acquisition that has some effect on competition. The European Union and New Zealand stand out as two reasonably successful foreign legal systems that permit the explicit consideration of non-antitrust concerns as part of a public interest authorization process.

This article examines how the US, the EU, and New Zealand operate in exempting agreements and acquisitions that injure competition, but nonetheless serve other important societal goals. Each of these systems can be praised for serving the important legal, historical, and cultural interests of its own society. However, for better or worse, relatively little of this experience can be transferred to the US in a way that would be an improvement over the narrowly drawn failing firm doctrine in US antitrust law.

antitrust, competition law, public interest, failing firms, merger guidelines, failing industries, industrial policy, European Union, New Zealand, Commerce Commission, Commerce Act, individual exemption, European Commission

Abstract:
There is vast literature on both harmonization and globalization. Much of the extensive commentary, at least in the United States, is outward looking. It focuses on how other countries have changed, or should change, their laws and legal culture to more fully participate in the global economy and the information age that is upon us. Other commentators take a more cautionary view and examine the price being paid by these same countries as a result of the changes they are implementing.

I want to take a different point of view and examine the lessons to be learned by the United States as a result of globalism. This essay focuses primarily on the area of antitrust or competition law, where the United States is a leader and one of the senior statesmen in the field. From this vantage point, the United States is often quick to teach, lecture, and criticize other legal systems that frequently do nothing worse than enact and enforce competition law in a manner that is different from the way we approach the same type of problems. The extreme version of this syndrome is, of course, both arrogant and offensive to sophisticated legal systems seeking to achieve varying objectives in a culture and history different from our own. I propose two changes. First, the United States must acquire the ability to analyze other legal systems from the point of view of whether legal rules and institutions serve their needs, not ours. Second, we must begin to study and analyze the developments of the more than one hundred foreign systems of competition law for the lessons we can use to reform our own system of competition law to better play the role of antitrust senior statesman in a global economy. This essay is a plea for change in the United States based on the lessons learned abroad both in antitrust law and in the broader issues of economic regulation and national sovereignty. It is not intended as an answer to these vexing issues but rather as the beginning of a different type of dialogue and a richer role for the United States in the global marketplace and world community.

harmonization, globalization, antitrust, competition law, European Union, state action, antitrust immunities, federalism, regulation, antidumping

Abstract:
This Article contrasts how two leading competition law systems, the United States and the European Union ("EU"), have reacted to the growing internationalization of markets and the relative decline of the ability of any single jurisdiction to regulate transnational business behavior. For reasons unique to their respective histories, cultures, and politics, these two jurisdictions have adopted very different strategies for dealing with this problem. The United States has offered two distinct visions of antitrust enforcement as part of a conscious opposition to the creation of international antitrust rules or true international enforcement. The United States first embarked on a fifty year strategy premised on the extraterritorial application of its antitrust laws. Only recently has the United States deemphasized this aspect of government policy and sought instead to embrace international cooperation as an alternative to either aggressive unilateral enforcement or the true internationalization of antitrust law.

In contrast, the EU has used competition law to cement and expand the single internal market that defines the Union, and then has sought to spread the influence of its competition law through the expansion of the EU, the negotiation of new trading arrangements which require the adoption of EU competition law as a condition of preferential access to the EU market, and the promotion of harmonization of competition law at the international level.

This Article offers the story of the U.S.-Canadian antitrust cooperation as the paradigm for how the United States would like the internationalization of antitrust to proceed, and the spread of EU competition through expansion and antitrust diplomacy as the paradigm for the EU approach. This Article then examines how these different approaches will play out in setting the agenda for the WTO and other international organizations that deal with competition issues. Rather than argue for the better approach, this Article seeks to suggest how politics, interest groups, and bureaucratic imperatives dictate, and sometimes defeat, national interests. The Article further speculates how other players and pressures in the enforcement of competition law may affect the success of the strategies of these two traditional antitrust powers in facing the decline of the nation state over this most traditional and sensitive area of national economic regulation and law enforcement. Finally, the Article closes with a suggested approach for harnessing self-interest to overcome collective action problems in order to address international antitrust issues without having to create the kind of new rules or institutions that have proved so unpalatable in the past.

antitrust, harmonization, cooperation, international antitrust, international trade, World Trade Organization, WTO, EU, OECD, NAFTA, UNCTAD, MLAT, IAEAA

Abstract:
I argue that antitrust enforcement has evolved from a court centered form of law enforcement to an agency centered form of regulation. I then use legal process and public choice theory to both explain this transformation and assess the changes occuring within the Antitrust Division and the FTC and the continuing questions of dual enforcement now that both agencies act primarily as regulatory bodies. I conclude with the organizational and enforcement changes necessary to make antitrust eforcement effective in the modern regulatory era

antitrust, enforcement, regulation, law enforcement

Abstract:
No one will ever know exactly why Franklin Roosevelt hired Thurman Arnold as head of the Antitrust Division of the Justice Department in 1938. It may simply have been that head of the Antitrust Division was the first important administration job available when Arnold's supporters and friends sought a full-time Washington position for him. While the nomination proved to be an awkward and controversial choice, it was also an inspired choice. For the next five years, Thurman Arnold revitalized antitrust law and enforcement and changed the entire focus of the New Deal from corporatist planning to competition as the fundamental economic policy of the Roosevelt administration. Those who favor a consumer-friendly competitive economy owe him a debt that transcends the specific cases he brought and the doctrines he espoused. This Article
is a look at that legacy.

Antitrust, Thurman Arnold, Legal History, Legal Realism

Abstract:
There are a number of baffling questions when thoughtful United States scholars and practitioners observe the way competition law and policy has evolved in Europe and elsewhere. These include: Why is the United States relatively alone in criminalizing hardcore cartel behavior? Why is the United States so isolated in allowing a private right of action, let alone a treble damage remedy? Why are private rights of actions so seldom utilized abroad even where permitted by local law? Should the European Union continue to be enforced by the European Commission or by a new independent European Cartel Authority? Why is the European Union so successful in gaining new adherents to its vision of competition law at the expense of the United States view of such laws?

There are also critical questions and assumptions about the origins of the concept of a European competition law. There is an often-expressed view that a "European" competition law is a misnomer, that EU competition law is either a pale reflection of an older and more mature U.S. antitrust law, a direct import from the United States, or merely a small portion of victor's justice imposed by the allies following World War II.

These questions cannot be answered as a matter of first principles or even theory. The answers lie deep within the law, history, politics, and economics of the EU and its member states as they wrestle with the importance of competition policy and how to craft the appropriate system of laws.

Professor David Gerber of lIT/Chicago-Kent College of Law has written Law and Competition in Twentieth Century Europe: Protecting Prometheus1 expressly to make the case for an indigenous competition law in Europe. He argues that there is a European competition law that stands independently of United States antitrust law and policy. He also argues that EU competition law and its national analogues all share common roots as a true pan-European competition law that developed on its own by policy makers aware of each other's efforts and consciously using developments in other nations to inform debates in their own arenas. No sensible reader can disagree with Gerber's first thesis and most will be convinced by the second and more intriguing part of his thesis as well.

David Gerber, antitrust, EU, European Union, competition law, ordoliberalism, market integration, European Commission, Freiburg School, Federal Cartel Office, cartel, dominance, mergers, joint ventures, public enterprise

Abstract:
This article examines the issue of whether United States antitrust law can be an affirmative tool to help US firms sell products and services into markets that have been closed to foreign competition as a result of either governmental or private barriers to trade. The issue first surfaced in the 1980s in connection with bilateral trade disputes between the United States and Japan over market access. Subsequently the issue of antitrust and market access arose in the ICPAC hearings of the Justice Department and the continuing controversy over the proper role of the World Trade Organization in the area of competition law.

The vigorous and non-discriminatory enforcement of antitrust law can contribute to promoting an international marketplace characterized by an open competitive process. However, national antitrust is at best, a supporting player in constructing a liberal multilateral trading order and is incapable of promoting any single country's exports. This article suggests a small, but important role for United States antitrust law in promoting that competitive marketplace in conjunction with a developing wave of competition law around the globe.

antitrust, World Trade Organization, trade and competition, ICPAC, Japan, Section 301, market access, collusuon, vertical restraints, trade sanctions

Abstract:
A dreary debate has occupied the antitrust community over the past 30 years. The debate is a more elegant, scholarly version of the commercials for Miller Lite beer that ran during much of the same period. In the beer commercials, one group of modestly recognizable celebrities and personalities of the day shouted "Tastes great" while the opposing group shouted "Less filling."

The antitrust equivalent of this debate involves distinguished academics and policymakers arguing whether antitrust law and policy should be "more efficient" or should incorporate "greater fairness." Both schools of thought have enjoyed their periods of supremacy. The more economically oriented efficiency camp, normally dubbed "The Chicago School," had reigned supreme since the mid-1970's as its narrower version of antitrust policy has been adopted by the Supreme Court, has been relied upon by the Reagan and Bush administrations, and has persuaded the majority of commentators.

The sterile nature of the resulting discourse makes a book like Rudolph Peritz's Competition Policy in America, 1888-1992: History, Rhetoric, Law particularly welcome. Peritz is not interested in rehashing the existing debates over the original intent of the antitrust laws or their proper interpretation. Instead, he explores antitrust law and policy using the insights of postmodernism and the teachings of Michael Foucault to analyze the history, rhetoric, and legal doctrine of the first century of antitrust. He further analyzes antitrust law not as a narrow specialty field but as a body of competition policy including labor, corporate, and commercial free speech law.

In this review essay, I seek to analyze Peritz's vision for antitrust law and an American competition policy. In the first section, I discuss why antitrust history and rhetoric lends itself so effectively to a postmodern approach and Peritz's overall success at this endeavor. Part II looks at one of the vexing questions underlying any attempt to delineate an integrated competition policy that includes commercial free speech: namely, whether the marketplace for ideas is really a marketplace at all. Part III goes beyond Peritz's work to suggest that a vision of a competition policy embracing more that just antitrust doctrine is appropriate for international, as well as domestic, markets. Finally, I offer my personal speculations on the impact of Peritz's postmodernism on the ongoing debates in antitrust law.

Rudolph Peritz, competition policy, antitrust law, postmodernism, discourse, European Union, marketplace of ideas, competition, competitiveness

Abstract:
This essay examines the quality of Supreme Court antitrust opinions by reference to the standards of jurisprudence developed by the Legal Process School. Antitrust is usually described as a delegation of authority to the federal courts to create a body of common law to interpret and develop the broad and quasi-constitutional language that Congress used in the Sherman Act and subsequent statutes. The Legal Process School provides a powerful lens in viewing that body of common law adjudication. Looking at antitrust though this lens, we suggest that specific rules of antitrust doctrine have succeeded when they have been the subject of reasoned elaboration by the Supreme Court, openly and fairly confronting the legal and policy questions before it, and creating a reasonably stable body of precedent that is accepted by government institutions and private parties as a basis for planning and conducting economic affairs. Measured against this standard, we believe that the Supreme Court has enjoyed a few shining successes and a greater number of dismal failures. These failures either led to continued warfare among the lower courts, the agencies, and the commentators, or forced the government and private parties to find non-adjudicative ways to reach stable and predictable rules to guide market behavior.

jurisprudence, legal process, antitrust, price fixing, resale price maintenance, monopolization, mergers, tying, group boycotts

Abstract:
Justice Oliver Wendell Holmes played as important a part in the development of United States antitrust law as he played in the development of constitutional law for which he enjoys a reputation as a giant in American law. Yet, for the more than sixty years since Holmes's retirement, there has been no comprehensive analysis of his contributions to the regulation of competition in this country. Now there are two.

Almost simultaneously, Professor Alfred Neely of the University of Missouri Law School and I have each published separate articles seeking to unravel whether Holmes had any substantial philosophy underlying his many opinions in a field of law that he found both silly and personally repugnant, and whether Holmes was faithful to his often-articulated view of the role of judges in upholding and implementing statutes with which they personally disagreed.

Professor Neely ultimately concludes that Holmes had no coherent philosophy of his own in approaching antitrust cases. Professor Neely's second conclusion is that in his antitrust opinions, Holmes remained faithful to his view that judges should not impose their personal views on the constitutionality and interpretation of legislation, but should implement the wishes of the legislature that drafted the legislation. Professor Neely, however, does concede that Holmes had a somewhat idiosyncratic view of what the legislature intended to accomplish in drafting the Sherman Act and subsequent antitrust legislation.

Professor Neely further alludes to Holmes's influence on modern movements in antitrust such as Law and Economics. But he fails to analyze critical limitations on the often-asserted view of Holmes as the father of the Law and Economics movement and overlooks two additional modern movements for which Holmes can be claimed as a more direct ancestor-namely theories of countervailing power and outright antitrust abolitionists. Professor Neely incorrectly suggests that Holmes is a marginal historical figure for antitrust purposes, when in fact his overarching philosophy, rather than his doctrinal contributions, continues to animate much of current antitrust debate.

My conclusions suggest that Holmes had a coherent, but limited, view of antitrust as the federalization of a common law designed to protect and enhance the value and use of private property. Justice Holmes's views unfortunately did not rise to the lofty standards that he otherwise advocated regarding a judge's duty to implement personally distasteful legislation. Despite all this, Justice Holmes remains a figure of importance and relevance for modern antitrust scholars and policymakers. His narrow and negative view of antitrust is reflected both directly and indirectly in powerful arguments that remain important forces to be reckoned with in the definition of the future of antitrust.

Oliver Wendell Holmes, antitrust, restraint of trade, monopolization, mergers, combination, law and economics, countervailing power, buyer power, Lester Thurow, John Kenneth Galbraith, antitrust abolition

Abstract:
On Friday, April 17, 2009, antitrust scholars from Europe and North America met at the British Consulate in Cambridge, Massachusetts to discuss Antitrust and the Rule of Law. This meeting, co-sponsored by the Loyola University Chicago Institute for Consumer Antitrust Studies and the Competition Law Forum (CLF) of the British Institute of International and Comparative Law, was the third in the series of Antitrust Marathons. The roundtable discussion was convened to address a series of issue papers related to Antitrust and the Rule of Law from a comparative perspective. The discussion was based on a series of short issue papers about different aspects of the rule of law in both American antitrust law and EU competition law. This special symposium issue of the Loyola Consumer Law Review contains the full issue papers and an edited transcript of the roundtable discussion.

antitrust, competition law, European Union, Rule of Reason, Rule of Law, Due process, intellectual property, Antitrust Division, Federal Trade Commission, European Commission, DG-Comp

Abstract:
The subject of linkages is the next logical step in growing movement to address the impact of international trade rules on other areas of the law formerly conceived of as either autonomous to international trade concerns or as purely domestic concerns. Conceiving of this set of issues as a coherent body of rules and theories is different from the traditional conception of the trade and problem which seeks to incorporate or privilege one or more traditionally non-trade issues within the multilateral or regional trading rules. The international economic law community has moved beyond the consideration of the individual relationships between trade and the environment, trade and competition, trade and intellectual property, trade and human rights as isolated phenomena vying for the attention of the trade community. Thinking about linkages requires the construction of new theories and teaching methods to show how the various trade and problems compare and contrast to each other and how linkages more generally challenge the trading system beyond the needs of any particular trade and constituency. This article lays out a small group exercise for an international trade law course to explore these issues effectively in an innovative and interactive format.

international trade, linkages, trade and environment, trade and human rights, trade and competition, trade and intellectual property, trade and development, international economic law, WTO, World Trade Organization, GATT

Abstract:
In 1982 Congress expressed concern over the massive and growing United States trade deficit, the competitiveness of U.S. firms in international markets, and the failure of small and medium sized U.S. firms to take advantage of export markets, The antitrust laws were identified as one of the principal culprits. The antitrust laws were criticized as too uncertain and as imposing a competitive disadvantage on U.S. firms competing against foreign firms not subject to similarly stringent national regulation. The antitrust laws were also believed to inhibit the formation of export joint ventures and the type of export trading companies successfully used in other countries.

Congress responded to these concerns by proposing two modifications to the antitrust laws with respect to export conduct. Congress proposed restricting jurisdiction in antitrust cases alleging a violation solely with respect to exports. Congress also proposed a more complex system where United States firms could apply in advance for certification that their export conduct was not a violation of antitrust laws. Ultimately, both proposals were enacted into law in the Foreign Trade Antitrust Improvements Act (FTAIA) and the Export Trading Company Act of 1982 (ETC Act).

Congress had numerous conflicting goals in enacting this legislative package. Congress hoped to benefit from all of the alternative export promotion bills being considered at the time, rather than having to pick and choose among them. Congress hoped that the resulting legislation would: 1) encourage the formation of well financed vertically integrated general trading companies along the line of Japanese general trading companies (sogoshosas) to assist United States exporters with all aspects of the exporting process; 2) allow competitors to jointly exploit market power abroad to offset the power of private cartels and foreign government enterprises; and 3) unleash a wave of export activity by small and medium sized firms previously restrained by uncertainty over the application of U.S. antitrust laws.

This article examines the Export Trading Company program (ETC program) and assesses its successes and failures. This Article suggests that Congress relied on empirical predictions and industry arguments of dubious validity in attempting to restructure the export segment of the industry by altering antitrust principles which were never a substantial impediment in the first place. This Article further suggests that Congress was unable to clarify what it wanted to accomplish in the export sector and enacted legislation incapable of achieving any of its mutually contradictory goals. This Article concludes that in implementing all of the competing proposals, instead of choosing among them, Congress created a program which created little incentive to export. Rather, the program affirmatively injured the state of competition policy in both foreign and domestic markets and the effectiveness of traditional antitrust enforcement.

Part I of this Article sets forth the modifications of the antitrust laws enacted in the name of promoting exports and reducing uncertainty. Part II examines the negligible impact of the ETC Act on the competitiveness of U.S. firms in the international market and on the structure of the export sector of the U.S. economy. Part III examines whether the ETC program has succeeded in reducing any actual or perceived risks which the antitrust laws inject into the export decisions of U.S. firms. Part IV explores the negative effects of the ETC program on the substance and enforcement of U.S. antitrust policy. Finally, Part V of this Article proposes the outright elimination or modification of the ETC program to enhance U.S. export competitiveness and lessen the damage to the U.S. enforcement of its antitrust law.

Export Trading Company; sogososha; exports; subject matter jurisdiction; antitrust; Foreign Trade Antitrust Improvements Act, FTAIA, ETC, export cartel

Abstract:
In this essay, we examine Carolyn Heilbrun's (writing as Amanda Cross) portrait of law and law teaching in "An Imprect Spy" in light of our own experience. Much of Heilburn's image of legal academia is unrecognizable not only to those familiar with that world, but even to those whose outsiders whose knowledge of law schools comes from mainstream media. Nevertheless, we conclude that Heilbrun, who presumably could have situated her mystery novel in any academic setting, believes that the fictional Schuyler Law School's aversion to change and its sexist atmosphere are shared with a broad range of law schools, all of which need to examine themselves more critically. For this belief, we are able to forgive the failings of the book as both a mystery and a novel and appreciate the author's efforts to satirize the pomposity and conservatism of law teachers who resist or disparage even modest innovations in class room and clinical legal education.

Amanda Cross, Carolyn Heilbrun, legal thrillers, mystery novels, novels, Imperfect Spy, legal education, clinical legal education, law and literature, feminist jurisprudence