Spotlight: Antitrust & Economic Regulation

Spotlight on Sections

Section on Antitrust and Economic Regulation

By Barbra Elenbaas


The Section on Antitrust & Economic Regulation promotes the communication of ideas, interests, and activities among members of the Section.

Chair: Rebecca Haw Allensworth, Vanderbilt University Law School

Rebecca Haw AllensworthPhoto courtesy of Vanderbilt University Law School

What can you tell us about the membership of the Section on Antitrust and Economic Regulation and the work they do?

Rebecca Haw Allensworth: Our membership draws from anyone with an academic interest in antitrust and competition, which is broad and includes intellectual property and healthcare.

Antitrust might seem like a single topic, but through antitrust and competition policy you influence many intersecting areas of public policy. Competition is the way that all businesses relate to each other. This has implications for all areas of commerce, and therefore many abutting areas of law. In certain areas of commerce, such as intellectual property and healthcare, the rules of competition haven’t been concretely hashed out. [Academics working in those areas] have an intense interest in antitrust law and competition policy.

Dodd-Frank was rolled back earlier this year via legislation that also weakened the Consumer Financial Protection Bureau. How has this legislation and the environment of deregulation affected your work and scholarship?

RHA: The immediate change in environment since Trump became president hasn’t been entirely deregulatory. Take the Department of Justice challenging the AT&T merger—a vertical merger is not something the DOJ has typically gone after. Though we see a strong appetite for deregulation in some areas with the election of Trump and the Republican administration, it’s hard to characterize these specific changes as deregulatory.

My scholarship is focused on a niche that the Trump administration has been paying some attention to: I write about occupational licensing and the antitrust consequences of self-regulatory boards (for example boards of medicine and boards of accountancy). When his administration contacted me for advice about economic policy, they asked the same questions that the Obama administration had asked. They seem to have the same interest. It is an across-the aisle issue.

Looking at the past 20 or 30 years, antitrust liability has shrunk since the 1970s. If you think of antitrust as a regulatory intervention, which I do, the effect has been deregulatory. Because antitrust is a way of regulating markets and setting rules, the less power it is given, the more deregulatory the trend. This is an artifact of a lot of things, including the political environment that brought about other kinds of deregulation (for example, President Reagan deregulating airlines in the 1980s) and also scholars like Robert Bork who railed against what he viewed as politically-motivated antitrust enforcement against big companies in the 1960s and 1970s.

Do you imagine that trend will continue?

RHA: That’s hard to say. From the perspective of politics today, you might be tempted to say “Yes, it will continue, because we know Republicans don’t like regulatory interventions in markets and they tend to favor big businesses.” On the other hand, Trump has been anything but predictable in this area. He has a populist tone that would seek to protect the little guy, and his actions in international trade are consistent with that. If that tone continues, then antitrust could move toward more easily-found liability to protect smaller, disadvantaged competitors.

A related but distinct trend is the neo-Brandeisian antitrust movement, which argues that the consumer welfare standards—Bork’s favorite measure of competition—systematically favors big businesses and has done violence to the markets, the consumers it’s supposed to be protecting, and to smaller competitors. Therefore, we need more and stronger antitrust regulation, and, in some instances, more central planning of markets from the government.

I think many people, especially young scholars, are making these arguments now. Some of those ideas are gaining traction. The type of work where these arguments make the most sense is in high-tech and twosided markets, where we are struggling to use the old antitrust rules and tools against business arrangements that aren’t easily categorized under them. Until now, the general thought has been that if a market cannot be defined by the old antitrust rules in a way that makes sense, and therefore the behavior cannot be defined as anti-competitive under those rules, then it must not be anti-competitive. There is a lot of evidence that’s not true. We need to do something different and better.

Which of these views will win out? The old-fashioned Republican free-market concept, or the relatively right-wing populist movement of Trump, or the left-wing neo-Brandeisian antitrust? It’s hard to say. They are all in play right now.

The major antitrust rules were made quite a number of years ago, correct?

RHA: The major antitrust statute is from 1890. That is our blueprint for competition law—it’s 128 years old and has not been substantially amended. The rules that came from the interpretation of that language all have origins in the first half of the twentieth century, but there were cases in the second half of the century reinterpreting them. These rules are sticky, and their roots really matter. Changes have been incremental, as is always true of case law. Business is changing faster than the law can reasonably be expected to change.


“Business is changing faster than the law can reasonably be expected to change.” 


How has scholarship around antitrust or the study of law around antitrust changed in the last 30 years?

RHA: You’re seeing a lot more empirical work and antitrust policy conclusions grounded in data-driven market analyses. In a quantitative sense, we’re seeing a lot more economic modeling. Theoretical models come out of scholarly articles and end up in case law. More recently, you see more of these neo-Brandeisian arguments coming up through scholarship. I would expect them to be, at least on some level, influential in the courts. How has teaching antitrust changed in the same time period?

How has teaching antitrust changed in the same time period?

RHA: The major difference between then and now is how much economics is taught. If you want to understand the law that applies to a specific conduct, then you need to understand its competitive consequences. You can’t understand the competitive consequences unless you understand the economics of it. The cases that were most important to antitrust 30 years ago are largely the same cases that are important now. The difference is now I ask my students to understand and explain the economics behind what happened in that case and how it justifies or doesn’t justify the holding that came out of it. Maybe that’s subtle, maybe that’s a monumental shift. But I imagine it’s the way most professors have been teaching antitrust in the last couple of decades.

What are the other important conversations happening right now in legal education regarding antitrust and economic regulation?

RHA: From my perspective, the big one is two-sided markets—where you are simultaneously marketing your platform to buyers and sellers. Like the way Uber markets their app to drivers and to passengers. The competitive consequences there are tricky, because they tend to be very “tippy” and network effects-driven. An example: If you’re Amazon, you want to attract people to buy things on your website and you also want to attract people to sell things on your website. Sellers want to know you have a lot of customers, and customers want to know you have a lot of sellers. The bigger you get on either side, the more demand there is to the other side. And it creates a virtuous or vicious cycle towards bigness. That’s one challenge.

The other challenge is what to do with competitive effects that negatively affect the competition on one side and positively affect competition on the other side. How do you trade those things off? Can you trade those things off? This is something many antitrust cases deal with obliquely, but it’s increasingly important in the American economy because we have so many high-tech platform-based companies and also because the laws are relatively uncertain in this area.

What do you have planned for the upcoming 2019 AALS Annual Meeting?

RHA: Our panel will be on two-sided markets. Our panels generally cross over between scholarly interests, academic interests, and practitioner interests. We make sure our members have a sense of what people are bringing lawsuits about in addition to what people are writing papers about.

What does your section do to recognize new scholars and/or particularly great scholarship from longtime members?

RHA: Every other year, we give a Lifetime Achievement award to a scholar whose work has made a major contribution to antitrust. The chair takes nominations from the four other committee members, then we vote as a committee and announce that person in the Fall. Two years ago, we awarded it to Eleanor Fox from New York University School of Law and two years before that we awarded it Herbert Hovenkamp from University of Pennsylvania Law School. This will be the third time we award it. We have an excellent slate of nominees this year. It will be a tough decision!

Do you have any programs to support the mentorship of junior professors?

RHA: As the chair, I made a point of bringing someone who was relatively new to the academy onto our panel. I also have a preference for new scholars when I’m selecting who to nominate or vote for to join our committees. I was voted to serve on the committee and to speak at the Annual Meeting when I was very junior, and I found it to be an invaluable networking experience. I’d like to pass that forward. The section doesn’t have anything formal, but everybody is interested in bringing up the next generation.

How do your section members interact and collaborate outside of the Annual Meeting?

RHA: Antitrust is an area of law with a lot of practitioners and comparatively few teachers. We are a small section. Our section listserv is casual. One of the major organizing bodies in antitrust is the practitioner organization, the ABA Antitrust Law Section—I and many other antitrust professors are active with them and with AALS. How does your section support the scholarship of your members?

RHA: The Annual Meeting is an opportunity for scholars to see what other scholars are working on, what people are talking about, and to exchange papers and comments. I found the times that I’ve spoken at AALS to be an opportunity to meet other professors who were interested in my research, which led to me sending them my papers and vice versa.

When I was brand new, Daniel Sokol (University of Florida Law) asked me if I was interested in serving on the executive committee for our section. That committee and the people I met at those conferences were my gateway into the antitrust intellectual community. The collaborations I developed there positioned me to have the resources, mentoring, and readers to bring myself through tenure. That’s what I tell every new professor, even people outside of antitrust. You’ve got to find your people. When you study something big and popular, things may be easier. For something like antitrust, it is a small community. For me, the AALS section has been the core of that connection.

What is your vision for the section, this year and in the years to come? What new initiatives, project-based or ongoing, would you like to see as part of the section?

RHA: I like the idea of formally recognizing new scholars, because that is one of the main purposes of the section, from my perspective. Particularly because there is usually only one antitrust scholar at each law school, which can be isolating. AALS was the one opportunity I had to get out and talk to the people who were knowledgeable in my field. Our section can build on that and create more of a structure to reach out to younger scholars through recognition or developing a more formal mentorship system.