Cases and Materials on U.S. Antitrust in Global Context

Cases and Materials on U.S. Antitrust in Global Context

Description

Larry Sullivan and I wrote the first edition of this casebook in the late 1980s. It was published in 1989. The year 1980 had marked a turning point in U.S. antitrust law. The heritage of the 1960s with its mission for equal opportunity was still very much with us, and Lewis D. Brandeis’ notion of a clearer path for “the little man” as well as William O. Douglas’ notion of autonomy and freedom through diversity still infused American antitrust. But these notions were quickly being overtaken. Globalization was shrinking the world; lower trade barriers meant fierce competition from abroad and new opportunities beyond borders. Efficiency became the mantra. The new paradigm for U.S. antitrust was consumer welfare—focusing on how business could gain market power and harm consumers. The new paradigm rationalized U.S. antitrust law and tended to ensure that antitrust law would help and not hurt efficiency—of firms and markets. Thus it was in the context of change that we wrote the first volume. We included much of the history and evolution of the antitrust law along with the most current cases so that the students could not only grasp the currents of the political economy but predict the direction of the law. When it came time for the second edition Larry Sullivan was already nearing the last years of his life and we were fortunate to be able to collaborate with Rudolf Peritz, who added much to the book. The second edition was published in 2004. The antitrust law was still evolving from the path of pluralism and distrust of bigness to the path of efficiency and trust in the market. Up to the last month of preparing our manuscript for the second edition, there had been only a few new Supreme Court antitrust decisions and these often favored the plaintiff; for example, Aspen Skiing, a unanimous judgment for the complainant against an exclusionary refusal to cooperate in issuing a multi-mountain ticket to all of the Aspen slopes, and Eastman Kodak, declining to uphold the district court’s grant of summary judgment for Kodak against independent servicers of Kodak equipment who had been cut off from Kodak-brand repair parts. The Kodak case, however, was decided 5-4, and the dissent by Justice Scalia was the handwriting on the wall of the approaching millennium. Just days before the printing of the second edition, the Supreme Court decided its head-turning Trinko case; and our publisher allowed us to include it—in an appendix. What else occurred in this more-than-decade between the first and second editions? In the same year as publications of our first edition, the Berlin wall fell. Most of the world became democratized. Scores of nations that had distrusted markets began to nurture markets, more or less; and almost all of these nations adopted competition (antitrust) laws. By the time of the second edition, antitrust was well on its way to becoming internationalized. Larry Sullivan passed away on October 7, 2007. His mark is deeply impressed on this book, on antitrust law in general (his treatise has been cited by the Supreme Court and other federal courts hundreds of times), and, more importantly, on the many of us who loved him and appreciated his humanism, his intellect, his Irish reconteurism, and simply his qualities as a human being. I dedicate this volume to him. Meanwhile, in the eight years since the publication of the second edition, the Supreme Court decided 11 antitrust cases, 10 in favor of the defendant, overruling precedents and resetting the perspectival compass. All of them followed the footprint of Trinko. On the world front, antitrust law has become significantly internationalized. The United States has lost some of the sheen of hegemony. U.S. antitrust and European Union competition law remain the models for the world, with EU outpacing the U.S. Scores of developing countries are injecting their needs into their competition laws, including distributional concerns and other public interests. The huge, rapidly emerging developing economies of China, India and Brazil may in some ways be setting a pace of their own. On the new economy/technology front, the world continues its pace of rapid change. Apple has sold its twenty-fifth billion iPad. Google makes 34,000 searched per second. Microsoft, the “monopolist” of the last two decades, is seeking to enlist the antitrust authorities in the U.S. and the EU to stop Google from allegedly manipulating the market in web search and expanding its power into adjacent market that might be pathways to control the future of information and communication technologies in the world. It is in this context that I write this third edition. How have I changed the book? I have reduced, but retained, historical coverage. All chapters are modernized; they include all of the latest Supreme Court cases and many instructive lower court cases. I have added a number of problems including an inspired one created by the International Competition Network—a virtual organization of the competition authorities of the world. I have retained, although reduced, excerpts from all of the old flagship cases including Alcoa and Standard Oil, and mined the philosophic premises of the Justices, highlighting the threads that have woven their way into the modern Court opinions. I have incorporated many non-U.S. references, showing contrasts and convergences and helping explain not only what U.S. antitrust law is but what it might be and what some of the rest of the world thinks it should be. I have incorporated contemporary economic thinking in an accessible and non-technical way, retaining the perspective that antitrust is law heavily influenced by generalized principles of economics, and not the other way around. My goal has been, and Larry’s was, to educate the student in the fullness of American antitrust; to show its place in domestic policy and in the world; to train the student in the analytics of contemporary antitrust law and practice, and to prepare the student to think about antitrust in the larger context, however that context might change.

Publication Date

2012

Edition

3

Cases and Materials on U.S. Antitrust in Global Context

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