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Antitrust Courts: Specialists Versus Generalists

25 Pages Posted: 5 Jul 2013 Last revised: 16 Jul 2013

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Date Written: July 3, 2013

Abstract

In the last several decades, scores of new competition laws have been adopted and National Competition Authorities ("NCAs") established around the world. No matter what the arrangement for initial review of the NCA decision or review of a trial court in a private action, there is always an upper level reviewing court of general jurisdiction, whether mandatory or discretionary. These tribunals vary significantly on a number of dimensions, including the degree of specialization as measured by the percentage of the court’s cases arising under the antitrust laws and the degree to which judges of a court have skills or training specific to antitrust. The proliferation of tribunals reviewing NCA decisions invites inquiry as to whether one degree or another of specialization provides more satisfactory results, however measured. In the absence of data sufficient to identify a relationship between specialization and performance, we evaluate the case for specialist versus generalist tribunals by reference to criteria that have been widely accepted in the legal and political science literature evaluating actual or proposed specialized courts, and applying those criteria — efficiency, expertise, and uniformly — to the particular context of antitrust cases. We make no recommendation for or against the use of specialist courts for antitrust cases where they do not already exist. Our point is the more modest one that the objections commonly raised against specialist tribunals, at least as applied to antitrust cases, are not daunting, much less insurmountable. Whether all antitrust cases — or perhaps only cases seeking review of a decision of an NCA — should be singled out for resolution by a specialist court depends, therefore, entirely upon the claim that the economic evidence in such cases would be better understood and analyzed by judges who deal repeatedly with cases of the same ilk.

Keywords: appeals, Canada, caseload, comparative, competition, complex, Diane Wood, European Union, FTC, Federal Trade Commission, frequent exposure, judicial, justice, margin squeeze, output, predatory pricing, quality, regulatory, Richard Posner, subject, UK, United Kingdom, vertical restraint, workload

JEL Classification: K21, K23, L41, L42, L43, L44

Suggested Citation

Ginsburg, Douglas H. and Wright, Joshua D., Antitrust Courts: Specialists Versus Generalists (July 3, 2013). Fordham International Law Journal, Vol. 36, No. 4, pp. 788-811, May 2013; George Mason Law & Economics Research Paper No. 13-42. Available at SSRN: https://ssrn.com/abstract=2289488

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Joshua D. Wright (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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