The most fun you can have in antitrust happens every April in Chicago at the Loyola Consumer Antitrust Institute colloquium. A crowd gathers, four people from a variety of walks of the antitrust world present research, commentators give insightful responses, and the crowd throws darts or gives virtual fist-bumps or even just uses the paper as an excuse to offer tangential but nonetheless interesting insights. At lunch a leading figure discusses something interesting and relevant. At Spencer's the night before the is a casual cocktail hour with predictably excellent hors d'ouvres, in the mid-afternoon there is a break for ice cream sundaes, and at night there is a great dinner with wine flowing from 6:30 until people head home.
I missed the cocktail hour on Thursday, to my great regret. Sick from running a marathon in the middle of an overly intense end-of-semester crunch, I didn't feel able to be social.
The first paper was Pierre LaRouche's (Tilburg) book chapter on comparative dominant firm enforcement standards, forthcoming in the Sokol/Lianos series. Some of what Professor LaRouche wrote was old hat, though well presented. The intriguing dichotomy between disfavored theories of enforcement on either side of the pond -- attempted monopolization in the US and monopoly exploitation in Europe -- is a base from which to ruminate broadly on the origins and development of the different competition regimes. (Paper idea: "Explaining Antitrust by reference to what did not survive.") I, and it seemed most others, gained much from Prof. LaRouche's original source research into the ordo-liberal economic tradition. It is a label I have seen tossed around casually so often that I have had a suspicion many authors do not really know what they are saying. After reading this chapter and hearing the presentation and critiques, I have a greater confidence that I understand what the school of thought stands for. And specifically, ordo-liberalism explains in part the progress of Article 102 interpretation and enforcement. This is the one paper on the LUC website that is not password protected. Highly recommended.
Tom Nachbar from UVa presented on The Antitrust Constitution. Wow -- I felt like I had been climbing a mountain from one side, enjoying the view and knowing the geology, and then I reached the ridge and caught a glimpse of the other side, very different but equally good. It was a different way to see something I had thought I understood. Addyston Pipe, Professor Nachbar teaches, is about a prohibition of private regulation of economic activity, which is fundamentally a non-delegation concept. Taft was offended by private efforts to structure the market, a project that the commerce clause gave to the federal government. So viewed, the Sherman Act is a dormant commerce clause-style enactment.
My first reaction was that Nachbar had to be wrong, or was reading too much into the word "regulation" in various of the opinions he was discussing. But it is the beauty of antitrust scholarship that there is no wrong, because there is no right. His interpretation is an elegant one. It leaves a difficult question of what is regulation: once that is defined and he has established that private regulation is what is prohibited, he can take the theories of liability one by one and give a thumbs or thumbs down. To Nachbar, regulation is control of another's use of its property. Price fixing? Regulatory, because it is an effort to control another's activities (the co-conspirators'). Illegal. Unilateral refusals to deal? Non-regulatory, because it speaks only to the defendant's own use of its resources.
I need to give this paper another, and a closer, read. The more fun part follows, because I need to re-read a litany of authorities that I had thought I understood. Bravo.
Much more to describe. I will pause here if only to keep this post to a manageable length!