Antitrust Law

B729 is taught by K. Dau-Schmidt, D. Knebel, S. Wallace

Antitrust laws are the Magna Carta of free enterprise, and are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. Justice Thurgood Marshall, United States v. Topco Associates (U.S. 1972).

Rising levels of wealth inequality and increased corporate concentration are these antitrust problems? Politicians seem to think so and have in recent years held numerous Congressional hearings, called for the break-up of big tech companies like Google and Facebook, and have advanced a number of antitrust legislative proposals. Antitrust policy makers and enforcers have spent the last few years debating whether antitrust laws focus on economics has lost the thread of Congress original intent for antitrust statutes, or whether such criticism is merely HipsterAntitrust cool to talk about, useless as a legal approach. The U.S. seems poised to take a step in a new antitrust direction, but despite a lot of political noise, it isn t clear that it will be in the E.U. s direction of more active enforcement (with their billion-dollar fines on Google and Amazon).

Gaining some basic knowledge of antitrust is not just important for being an informed citizen. As our law school s general practice web page advises: no matter how specialized a lawyer s practice, there are certain subjects with which every professional should be familiar and you should know enough about antitrust to be able to recognize a potential issue and help [your] client avoid running afoul of the law. Or as a plaintiff s lawyer, you should know enough about antitrust law so that you don t miss a chance to sue for treble damages. Or if you are interested in government practice, you should know enough about antitrust law to consider careers with multiple federal agencies (e.g., Federal Trade Commission, DOJ Antitrust Division) and state Attorneys General offices.

It is also just plain fun: it is judges and lawyers who have made antitrust law out of the cryptic antiquated language of the Sherman Act, as later supplemented by the equally cryptic Clayton Act. (Judge Posner) That is because all of antitrust law, which has both civil and criminal components, has grown out of a small handful of statutory sentences. (The corollary of that, however, is that if you prefer bright line rules with clear statutory direction, this course might not be for you.) Our semester will chart antitrust law s development and basic concepts (from criminal price-fixing to civil monopoly claims to the analysis of whether proposed mergers are anti- or pro-competitive), which will allow us to make some informed predictions about what value antitrust law may have to offer in the future.