Antitrust Law Areeda

And the treaty is complete. It covers everything from substantive antitrust law to questions about how expert opinions, court proceedings, remedies and legal exceptions affect the practice of antitrust law. It collects thousands of minor court cases and summarizes their views on controversial legal issues. The authors carefully navigate differences in jurisdiction over many difficult issues and update the law in areas where technology and new markets have led to ambiguities in doctrine. Simply put, everything you want about antitrust law — from case law to policy to business, from patent abuse to market definitions to a historical account of the FTC — can be found in the document. It is probably no coincidence that a one-volume treatise24 published the year before Areeda Turner`s original three-volume treatise did not acquire the same influence. With 21 volumes, the treatise Areeda Hovenkamp proves that greatness is important. The timing was perfect. The Original Antitrust Law: An analysis of antitrust principles and their application was published in 1978, at an opportunistic time in the development of antitrust law.

In the previous decade, Richard Posner, 25, and Robert Bork, 26, had strongly advocated a purely economic standard to regulate antitrust law. The Supreme Court awarded these professors their first victory in the subsequent antitrust revolution in 1977 when it ruled Continental T.V., Inc. v. GTE Sylvania Inc.27 according to the Chicago School paradigm. But despite this early interest in combining economic principles with antitrust law, most of the Chicago School`s ideas were too far removed from existing antitrust law — and perhaps too extreme — for a simple judicial takeover. Enter the Areeda-Turner treatise, which grafted economic thought onto the existing doctrine of cartels in a way that was both more moderate and feasible than the scientific proposals of professors like Bork and Posner. Perhaps the simplest is that the members of the Tribunal have read the document and appreciate it very much. This can be inferred from the frequency of his citations in Supreme Court pleadings,84 the Court`s pervasive and authoritative quotations about them,85 and Justice Breyer`s remark about the importance of the treaty to the practice of antitrust law.86 There seems to be no doubt that the Court has a worn-out copy in its library. [28]. David Binder, Phillip Areeda, Considered Top Authority on Antitrust Law, Dies at 65, N.Y. Times (27 December 1995), www.nytimes.com/1995/12/27/us/phillip-areeda-considered-top-authority-on-antitrust-law-dies-at-65.html. [83].

See Daniel A. Crane, Book Review, Antitrust Modesty, 105 Mich. L. Rev. 1193, 1193 (2007) (Hovenkamp review, footnote 1 above) (“As the guardian of the treaty, Hovenkamp speaks with an oracle-like authority when it comes to antitrust.”). [18]. See e.B. Amarel v. Connell, 102 F.3d 1494, 1509–10 (9 Cir. 1996) (quotation from the antitrust law treaty). Finally, in his article, Professor Hovenkamp brings an academic perspective on antitrust issues. While we would all like to believe that the Academy is impartial in its assessment of legal issues, we inevitably approach problems and mysteries differently from elected politicians, appointed bureaucrats, and government employees.

The composition of the agencies and the court shows that the academic perspective is valued — three out of five FTC commissioners and five out of nine Supreme Court justices are former law professors101 — but in a mix with other professional backgrounds. At least some decision-makers with extensive practical and hands-on experience – whether in solving real cases and controversies, in business or with government – can improve antitrust decision-making. Professor Hovenkamp deserves applause for his tireless work to fill in the gaps left by the Court of Justice and the antitrust authorities. Without his efforts, subordinate courts and parties would drift toward the controversies and academic divisions that afflict modern antitrust law. But the importance of his article – which is unique in all areas of law – testifies to a emptiness at the heart of the cartel doctrine. Very few issues are examined by antitrust authorities, and too many doctrinal disputes last too long. But as long as we do not resolve the institutional constraints that hinder legislation from above, I am glad that we have Professor Hovenkamp at the helm. The qualitative analysis of the citations confirms the impression given by the figures: the treaty is an essential source of antitrust authority at all levels of federal practice. Courts usually cite parts of the treaty in detail and dismiss passages as wholesale quotations instead of reformulating the point.13 And courts often explicitly adopt the suggestions proposed as law in the treaty. For example, before the U.S. Court of Appeals for the D.C.

In Circuit`s Microsoft case, the court adopted the structural exemption position by dismissing the appeal below and warning against an awkward structural remedy in remand.14 Similarly, the U.S. Court of Appeals for the Third Circuit in LePage`s Inc. v. 3M adopted the document`s position that a competitor offering a broader range of products Bundled discounts can be used to exclude a competitor. equally effective.15 In another case, even the language of the document was used to name a section. Title: `Applicant matches Areeda and Hovenkamp`s description of `A Fledgling Company`. 16 Undoubtedly, yes, hopefully, much of the work of collecting cases and updating their content for frequent additions falls to research assistants; nevertheless, the writing of Professor Hovenkamp`s expertise and intellectual dexterity dominates the treatise. The style is scientific, meticulous, clear and meticulous and is reflected in his impressive work beyond the treatise. Professor Hovenkamp has written more than 100 legal journal articles and, in addition to the treatise, 14 books. In keeping with the treaty`s tradition of interdisciplinarity, Professor Hovenkamp has written enough constitutional, legal, intellectual property and, of course, antitrust law history to qualify individually for a term in each of these areas.

A conservative estimate of his academic citations, without the article, is about 2700.34 Professor Hovenkamp himself noted that there was a significant lack of guidance on antitrust policy from the Supreme Court. He cites “a reduction in the oversight function of the Supreme Court and.. a growing number of conflicts between lower federal courts” following a light-hearted cartel law by the Supreme Court in the 1990s and early 2000s.”45 He states, “The task of adopting antitrust rules falls largely to the federal courts of appeals.” 46 Finally, it is perhaps important to ask whether all this is not a lot of twisting by hand in vain. Some may say that if the document is as excellent as I claim in Part III, nothing is lost when it fills the legal void. For these critics, it seems that the newspaper is very comfortable when the authorities cannot legislate openly due to practical or political limitations. This argument has some power. Given the lack of antitrust law from above, we are undoubtedly in a better position than we would be without the newspaper. But the modifier “given the absence of antitrust law” is important. There are enough problems with a single academic speaking on behalf of the antitrust authorities that we should rethink the structural features that created the legal vacuum in the first place and get to the root of the problem.

[12]. This search of Westlaw was limited to the federal district and appellate courts for [“antitrust paradox” /10 Bork]. In comparison, a westlaw search for [Areeda/4 Hovenkamp/10 “Antitrust”] limited to federal district and appellate courts revealed 758 cases as of March 23, 2015. It is easy to conclude that the superior quality of the Areeda-Hovenkamp Treaty (as I will call it because it is what it is today and what it is more than twice as long as the Areeda-Turner Treaty) contributed to its influence. .