Sunday, February 9, 2014

Competition Law

Okay, I know I usually only post here about running, or, more recently about not running.  But today I'm going to post about competition law.  I have been wondering recently about the status of the antitrust course in the modern law school curriculum.  When I was in law school everybody took it.  But that was back in the 1980s when folks didn't yet realize that the Reagan revolution was permanent.

By the time I went on the teaching market, I proposed to teach antitrust, but most schools' priorities were elsewhere.  One school that made me an offer said they didn't think there was sufficient student interest to even offer the course.  Since Spencer left Brooklyn many moons ago, the hole has never been filled.  Indeed, the gap has existed for so long that my colleagues don't even realize that it exists.

In my view, antitrust is foundational.  It is the one place in the law school curriculum where we expose law students to the basic economics of business regulation and market structure.  My fear is that our students get haphazard exposure to these topics at best.  The modern paradigm is financial services regulation, which is devoted to preventing fraud rather than addressing market structure.  Students get bits and pieces of theory about global markets in an international trade course, but there are too many other things going on in that course for that to be sufficient.

I guess my question for the group is whether this is a problem at one school, or is it a deeper problem in the law school curriculum??


  1. The problem is endemic. When I was on the market I got the response you note so frequently that my top-line interest became commercial law. My institution was willing to have me teach it as my "elective." When occasionally I get course relief, the course to go is antitrust. (That said, we are about to be offering two antitrust courses and a comparative antitrust course in AY2014-15.)

    I think the reason is slightly deeper than what you suggest. Because antitrust was the playground for early law and econ. scholars, I think antitrust has an unfair reputation as inculcating the opposite of social justice-style thinking that pervades the academy. Other courses have that reputation, too, but at least they are bar courses.

  2. By foundational do you mean undergrad LLB or JD or whatever it is called there? In UK and EU, competition law is masters level only and up. I wish it was taught earlier. Btw, I loved this:

  3. I am under the impression that many EU schools include competition law as part of a broader commercial law or company law course but agree with Phil that you have to get to the LLM level to get serious coverage of the details.

    In the US, antitrust is still thriving at the elite level of top 15 schools roughly Georgetown/Texas and above but Ted is correct as to everybody else. Good to know Brooklyn is still holding my slot though.

  4. By foundational, I mean it is the place where students learn something that is essential to understanding a broad swath of courses. You can't really understand a course in M&A or Securities Reg or Business Reorganizations until you've taken corporations. Antitrust is the place where US law students traditionally learned the economics of competition, the choice between regulated and competitive industries. Even those of us who see political content in the Sherman Act would teach the economic concepts. Some of that stuff can get picked up in courses like International Trade, or Telecom, or Regulated Industries, but the treatment is rarely systematic, and lacks the broad perspective that one can take in the Antitrust class.

  5. In short, taking Telecom if you haven't taken Antitrust is sort of like taking Securities Reg if you haven't taken Corporations. You can get through it, but you're not seeing the whole picture.

  6. So, to continue my rant, if (1) antitrust is in retrograde as a course; (2) a basic understanding of theories of competition and regulation is fundamental to a legal education where should this content live? It could go in to the newfangled reg/leg course, but those courses seem to be mostly legislative and administrative process courses, with a soupcon of statutory interpretation. Okay, done for now.