Archive for May 2012
User’s Guide
The naysayers pretend that this blog is for “self-promotion“.
Last WE, we received again a comment by “Someone” (or is this Raymond again?) who bashed us for our lack of objectivity, our allegedly one-sided editorial line, and other things that I cannot even recall.
Since we do not publish rubbish, especially when anonymous, we decided to trash the comment.
Now, a few reminders are in order:
- The reading of this blog is not compulsory. Escaping Chillin’Competition is just “one click away“;
- There are no barriers to entry on this market. A blog costs nothing to set up. Those who may be willing to contradict us can freely do so;
- We do not self promote, and certainly not Alfonso (did you read yesterday’s love declaration?). Our Friday slot series and the Economist corner bring ample proof of this;
- If I am the one to self-promote, it is because I am a fairly anonymous guy: I have a twin brother, and I have two very famous homonyms (see here and here).
The European Commission’s Legal Service
One of the good things about this blog is that it enables us to give credit to the people who, in our view, deserve it.
Today it’s the turn of the European Commission’s Legal Service.
Why them? Because many of the most brilliant jurists and many of the most reasonable and kind people that I have come across in my professional life were/are members of the Commission’s Legal Service. We won’t cite individual names because it would be unfair to those not mentioned, but also because the list would be too long.
These guys know competition and State aid law inside out, but they also know there are other provisions in the EU Treaties; they have the uncomfortable mission of second-guessing the case team’s work and of facing lawyers in Courts; they don’t have the same means and tools that big firms have; they sometimes have to fight armies of lawyers with the help of only one or two colleagues; they have an unbearable workload (Fernando Castillo de la Torre recently told us that he’d had more than 20 oral hearings last June!); and still they win most cases. And when they win there are two options: (a) either other people get the credit; or (b) everyone blames the Court for getting things wrong. That’s not always fair; I have worked with, and most often against, them, and in every single case they did an outstanding job.
Were Court submissions in the EU not confidential (query: should they?), people would realize the importance that the Legal Service has had in shaping up competition law.
All of this sounds like we are buttering them up but, frankly, it´s what we think. We seldom see their work praised in public (praising the ones on the other side of the table is not always common whereas demonizing the Commission is), so we decided to take it upon us to say that the work these guys do is to be acknowledged.
We said above that some of the most brilliant and nicest people in the competition law we’ve met in the competition law world belong to the Legal Service. We are very proud to anticipate that one person who fits perfectly into this description, Eric Gippini-Fournier, will be our next “Friday Slot” interviewee. (P.S. Click here for the interview)
François Hollande and Competition Law
The French Presidential election was held yesterday and, as you know, François Hollande won.
There is significant expectation as to the changes that the result of this election might entail for the rest of the European Union. Now, should we expect any changes in the competition law domain?
Nicolas Sarkozy did have an undeniable impact on competition law. First he managed to delete from the Lisbon Treaty the reference to the objective of ensuring “free and undistorted competition” in the EU (see here and here) and then he taught us the difference between endive growers, Apple and Microsoft (an explanation that, as you may remember, prompted our friend Mark English to stop wrapping his iPhone in ham).
Those interested in Hollande’s views on competition law should read his replies to Concurrences’ interview (in French, though).
The Friday Slot (10): Herbert Hovenkamp
As we announced a couple of daus ago, today’s Friday Slot festures an interview with Herbert Hovenkamp. We also said in our previous post that, even though we have never met Professor Hovenkamp in person, there are very few people who have taught us more about antitrust law. His works (cited in this 17-page CV) exude an all too rare lucidity. When he was awarded the John Sherman Prize by the US Department of Justice, Thomas Barnett said that “Professor Hovenkamp sets the standard for antitrust scholarship today”. We agree. If you ask us, Professor Hovenkamp is not only the co-author of the best book in the history of antitrust law, but he’s also the author of a few more of the works that would feature in our top-10. That’s why we were thrilled to receive an email in our inbox from him (signed as “Herb”) accepting our invitation to take part in The Fridat Slot only a few minutes after we contacted him.
We are immensely grateful to Professor Hovenkamp for having accepted our invitation, for all that his work has taught us and will continue to teach us, and for his enormous contribution to making antitrust law a more sensible discipline. We leave you with him now.
“Oscar” of the best antitrust law book? Non-antitrust book?
Best Antitrust Book: Oliver E. Williamson, Markets and Hierarchies: Analysis and Antitrust Implications (1975).
Best non-antitrust book: Louis Menand, The Metaphysical Club: A Story of Ideas in America (2001)
“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?
Best: Mayo Clinic v. Prometheus Laboratories, 132 S.Ct. 1289 (2012)
Worst: FTC v. Phoebe Putney Health System, Inc., 663 F.3d 1369 (11th Cir. 2011).
Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU antitrust system. What would you do?
Answer: I would speak only to the United States system, where I would change the following three things:
A. The per se rule against tying arrangements (insofar as it still exists)
B. The strict recoupment requirement in predatory pricing cases when prices are clearly below average variable cost
C. The federal courts’ repeated refusal to see the competitive harm in reverse payment settlements in pharmaceutical infringement cases
Average working time/week?
According to my family, way too much.
Why do you work in antitrust law? How did you first get into it?
A very good and inspiring teacher in law school, Lino Graglia of the University of Texas
Most interesting, intense or funny moment of your career?
The first time I sent a manuscript to my sadly departed and at the time very senior co-author, Phillip E. Areeda, in 1985. It was intense although not necessarily funny.
Your role model (if any) in the antitrust community?
What do you like the least about your job?
Grading exams
What do you like the most about your job?
The classroom, particularly my antitrust, torts and innovation and competition policy classes.
What do you like the most about economics in antitrust law?
Its ability to separate rational from irrational conduct (at least in many cases)
What you like the least about economics in antitrust law?
Its tendency to become overly technical and thus beyond the reach of the people who are most central to antitrust decision making.
What career/personal achievement are you most proud of?
Completion of the Antitrust Law treatise after Phillip E. Areeda’s death in 1995, and also the recent completion of my book Creation Without Restraint: Promoting Liberty and Rivalry in Innovation (with Christina Bohannan) (Oxford, 2012)
A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?
I would be either a Dutch Reformed clergyman or a Professor of American History
Besides being a “antitrust geek” (sorry for this one, but we all are), what are your hobbies?
Raising children and dogs, and traveling
Favorite movies?
Sappy chickflicks: The Notebook, Sleepless in Seattle, Titanic
Favorite music style in general?
1980s and 1990s rock and progressive country
Your favorite place in the world?
Paris
Your favorite motto?
« Just Do It » [apologies to Nike]
Websites that you visit the most (besides Chillin’Competition)?
–RealClearPolitics.com
–Slate.com
–eBay.com
A piece of advice for junior antitrust professionals?
For young antitrust academics: don’t get too hung up on ideology.
Costs Conference – Last Call
A last call for our conference on costs next week (I have pasted below the earlier annoucement, Tomra is out).
I would be very grateful if our readers could disseminate the programme within their respective organisations.
To help clarify how and why costs are used in competition proceedings, the Brussels School of Competition(BSC) will organize on 9 May a half-day compliance seminar (this seminar was due in early 2012, but was rescheduled).
Amongst other things, this seminar intends to review recent case-law developments, in particular the recent judgments handed down by the EU Courts in the Post Danmark (C-209/10) and Telefónica (T-336/07) cases. Hopefully the Tomra ruling will also be out by this time [it is out].
In line with the interdisciplinary spirit of the BSC, this seminar attempts to “blend” competition law and economics. Under each selected topic (see agenda here), it thus brings together a team of one lawyer and one economist, who will seek to provide an integrated perspective on the issue.
This event is a joint initiative of the BSC and of the Institute for European Legal Studies (IEJE) of the University of Liege (ULg). The registration form can be found here.
Reading Competition Law Books
In our “Friday Slot” interviews we ask what competition law book deserves an Antitrust Oscar. A frequent reply from our interviewees is that they do not read competition law books but rather consult specific sections of such books when they are looking for something in particular.
We don’t necessarily agree with this view. Even though there are certainly some books that we only use for reference, we believe that some of the best books on antitrust are texts that you will not come accross if you’re just looking for references or for the answer to a very particular problem.
In our very own experience, reading certain competition law books written by people who clearly outsmart us has provided us good general overview of issues that we may not had/have yet seen in our professional life, and, most importantly, it has obliged us to reflect and think about what makes sense and what doesn’t in a discipline to which we devote an insane proportion of our life. Personally, we have learnt most of the theory we know from books and not from attending courses, seminars or conferences, no matter how good they were.
The obvious -and reasonable- response is “if, as you say, you already devote an insane amount of time to this, why on earth would you spend non-working time reading about the same subject?”. That’s partly true, but, the way we see it, it is one thing to spend your time working on a particular issue, and a very different one to take the time and distance (not to let the trees hide the woods) to reflect on the reasonableness of the overall discipline in which we are immersed.
We’re not saying that we do -nor, of course, that anyone else should- read competition law books instead of non-competition law books. No matter how good a competition law book is, non-competition law books teach you or open your mind to much more important stuff. We are just saying that -when we’ve had the time- we have found it useful to include some competition law books in our reading list.
A (certainly non-exhaustive) selection of some of the competition law books that make a most interesting read could feature Hovenkamp’s “The Antitrust Enterprise“; Areeda and Kaplow’s “Antitrust Analysis: Problems, Text, Cases“; Bork’s “The Antitrust Paradox“; Posner’s “Antitrust Law“; Amato’s “Antitrust and the Bounds of Power“; Luis Ortiz’s “Market Power in EU Antitrust Law“, Giorgio Monti’s “EC Competition Law” or Odudu’s “The Boundaries of EC Competition Law; The Scope of Article 81“. There are many other great books but we can’t name them all (suggestions in the form of comments will be welcome!).
The ones I’m currently in the (slow) process of reading (alternating from one to the other) are “Creation without Restraint: Promoting Liberty and Rivalry in Innovation” by C. Bohannan and H. Hovenkamp; Kevin Coates’ “Competition Law and Regulation of Technology Markets” and Einer Elhauge’s (Ed), “Research Handbook on the Economics of Antitrust Law“. I´ll also be happy to read Nicolas’ most recent book ; sorry, wrong link; this is the right one! 😉 I intend to post a review of these books here once I´m done with them.
Regardless of all the above, my personal favourite antitrust book ever is one that I have only used for specific consultations and that I will most likely never read: the Treatise written by Areeda and Hovenkamp: “Antitrust Law: An Analysis of Antitrust Principles and their Application“. The reason why I know I won’t read it is that it looks like this:
Three additional comments:
– Herbert Hovenkamp -whose work is referenced above a few times- is clearly one of the 4 or 5 people from whom I’ve learnt more antitrust law, and the only one of these (aside from his co-author late Philip Areeda) whom I have never had the chance to meet in person (which again proves the importance of competition law books). We are very proud to anticipate that our next Friday Slot interview is with him!
– There is much to be said about the pricing of many of these books. But we’ll deal with that in a separate post.
– I recently recommended here a non-competition book -in Spanish, though- and a few (four) of you have sent emails saying that you loved it, which is nice to hear. Here is another suggestion, in English this time: A Heartbreaking Work of Staggering Genious.
Chillin'Competition 