Chillin'Competition

For this twelfth edition of The Friday Slot Chillin’Competition is proud to bring to you an interview with a true antitrust guru: Einer Elhauge. Einer is the Petrie Professor of Law at Harvard Law School, where he teaches antitrust and many other subjects. He was actually one of the reasons why I applied for the Harvard LL.M (I got unlucky because he did not teach antitrust that year!). When someone asks me about the students and professors at HLS my usual response is that most people there are generally as smart/dumb as most other people, with the difference that they’ve had more opportunities in life. There are some exceptions to this and Einer is one of them: you can quickly tell that his mind works at a different pace….  Aside from teaching at Harvard he also testifies regularly as an expert in antitrust economics and is President of Legal Economics; he was Chairman of the Antitrust Advisory Committee to the 2008 Obama Campaign, and is currently on the 2012 ABA Antitrust Transition Task Force.  His most recent book is Obamacare on Trial, and his past books include Global Antitrust Law and Economics; Global Competition Law and Economics; U.S. Antitrust Law and Economics; Statutory Default Rules; and Research Handbook on the Economics of Antitrust Law.  He has also authored many other articles on antitrust and other topics.  

For those wondering: the pic above shows Einer trying to move mountains 😉  We leave you with his great replies:

Why do you work in antitrust law? How did you first get into it?

I loved antitrust from the first class I had with Phil Areeda.  It just came so easily and naturally to me, and it involved a combination of creativity and analytical precision that I found very attractive from the get go.  I knew immediately that I had found my calling.  (I had already gone to and left medical school, so finding my calling did not initially come easily to me.)

What do you like the least about your job?

Grading exams.  But then again, the rest of the job of being a law professor is something I would do for free, so it is not so bad if I take the view that my entire annual salary is for grading exams.

What do you like the most about your job?

Thinking about whatever I find most interesting.  Really, that is an incredible luxury that I am thankful for every day.

Any favorite antitrust books?  And favorite non-antitrust law books?

Favorite antitrust books.  Bork’s The Antitrust Paradox: A lot was wrong in it, but he was also right in skewering many bad prior antitrust doctrines, and it is still the best written antitrust book ever.  Carlton & Perloff, Modern Industrial Organization: A wonderfully clear exposition of the antitrust economics that every antitrust lawyer and professor should master.

Favorite non-antitrust law books.  Ely’s Democracy and Distrust: Of course, that may be because it essentially used an antitrust theory to explain constitutional law.  Black’s Law Dictionary: I have always been impressed by the incredible brief lucidity of this book; it explains an amazing amount of conceptual logic in few words on every legal topic under the sun.  The Federalist Papers: A beautiful exposition of political thought, even though recent historical work suggests it might not have influenced the Constitutional adoption that much.  Richard Posner, Economic Analysis of Law: Never has any human said so many insightful things about so many areas of law in just one book; he had the advantage of living at a time when there was lots of low-hanging fruit, but by God he picked them all clean.  Bruce Ackerman, Social Justice in the Liberal State: It kept me up all night once because I found it so fascinating.  David Strauss, The Living Constitution: An elegant explanation for many anomalies in constitutional law.  John Rawls, A Theory of Justice: The philosopher most relevant to many legal issues, even though his mini-max is to me implausibly risk-averse.  Bob Woodward, The Brethren: Just a lot of fun; the stories about Chief Justice Burger are worth the price alone.   John Haar, A Civil Action: I could not put it down; who would have thought one could make civil tort litigation so gripping?

 You teach comparative US-EU antitrust law. How big is the transatlantic divide?

I think it is actually quite exaggerated.  Having co-written a Global Antitrust Casebook and taught Global Antitrust many times, I find that when you teach the cases on any particular topic side by side, you generally find that often there is a formally different way of expressing things, but a lot of substantive convergence.  And when the substance diverges, I think it can often be explained by a divergence in remedies.  The US courts repeatedly cite the overdeterrence threat from criminal penalties, private treble damages and class actions as a justification for narrowing US antitrust law.  That same logic suggests that competition law should be broader where those remedies do not exist, like in the EC.

 You were the chairman of the Antitrust Advisory Committee for the Obama campaign in 2008 (also of the Blogs and Op-Eds Committee and a member of the health policy group –congrats on this last one!). How has antitrust enforcement under the Obama administration performed in comparison with previous Administrations?

I think it is impossible for any outsider to tell for sure because performing well is not being more active or less active in the abstract.  It is bringing antitrust cases when they should be brought and not bringing them when they should not.  And to tell whether that is happening to a great or lesser extent than prior administrations, one would need the confidential case information on all the cases, which obviously we lack.  The only ones who really know for sure are the agency officials, and they are not the most neutral judges of how well they have done.

Let’s do it like economists => assume that you could change 3 antitrust rules, principles, judgments or institutions. What would you do?

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