William E. Kovacic: An Antitrust Tribute – Liber Amicorum (Vol. I)

Nicolas Charbit, Anna Chehtova, Abigail Slater

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The United States does not seem to have developed the tradition of liber amicorum in the legal profession. This book is, therefore, an extremely successful, not to say "masterstroke". The publishers are to be congratulated on having thus created a fine practice of peer-to-peer esteem and friendship across the Atlantic. It is true that William Kovacic’s personality lent itself particularly well to this undertaking, as did his extraordinary professional career (lawyer, commissioner at the FTC, and then president of this agency, professor, adviser to many governments around the world, vice-president for Outreach of the ICN). On this side of the Atlantic, we have perhaps been more sensitive to the stature of the great Democratic President of the FTC, Bob Pitofsky. We rediscover with interest the influence of William Kovacic, a Republican with sometimes severe postures, but a warm personality. Two volumes were necessary to accommodate all the tributes expressed. The first volume of this Antitrust Tribute was published in November 2012, while the second volume will be published at the end of this year 2013. The first part of this work is devoted to articles directly retracing the career of William Kovacic and the second part to the renewal of the main anchors of antitrust law. We will have to wait a few more months to discover the part related to his international involvement in bilateral and multilateral cooperation, OECD, and NCI.

Entitled "An Antitrust Career," the first part could pass for a panegyric if it did not have the humour to mark a certain hindsight. It’s that you have to grasp how much enthusiasm and even affection there is for the person of "Bill". First of all, it is understandable that this tribute is a just return, as he has developed a particular ability, even a mastery through the richness and appropriateness of his cultural references, to celebrate his peers at all ceremonies and official events (William Blumenthal, The Toastmaster). Moreover, it is a certain art of formula that has enabled him to create adherence to his often innovative ideas (Albert A. Foer, Implementing the Artistry of Bill Kovacic). The idea that recurs as a leitmotif in this book is about the institutional architecture in the United States, as he dared to question the dualism constituted by the FTC and the Antitrust Division of the Department of Justice (Joe Sims, The Elephant in the Room). Indeed, dualism is rather perceived as a duel. Perhaps it is the hindsight gained from studying enforcement practices around the world that has allowed it to be perceived so acutely (Theodore L. Banks, Bill Kovacic and the Global Evolution of Antitrust). In this review, he strongly supported the argument of American inefficiency in the implementation of antitrust law (W. Kovacic, U.S. Antitrust policy: The underperforming federal joint venture, Concurrences no. 4-2011, p. 65). Joe Sims draws attention to the rather significant fact that on this single point of unification, or at least a process of closer cooperation between the two institutions, Republican Bill Kovacic and Democrat Christine Varney have been able to join forces. It is a striking feature of Bill Kovacic, certainly very much imbued at the very beginning of his career with the influence of the Chicago School and the Public Choice theory, that he immediately became concerned about the performance of the "enforcers". He was therefore concerned to develop an analytical grid: the "4 C’s" (cost, complexity, confidentiality, confession of error). His contribution in this field seems to have been decisive (James F. Rill, John M. Taladay, Grading Antitrust Agency Performance: Bill Kovacic’s Contribution and Commitment). His friends finally had the idea of evaluating him against the criteria he had identified for an ex-post evaluation that he was so keen on good formulation of objectives, planning, and strategy, efficient use of resources (Daniel Sokol, Christine Wilson, Joseph Nord, Grading the Professor: Evaluating Bill Kovacic’s Contribution to Antitrust Engineering). It may be necessary to wait for the next generation to move forward on this issue in the hope that they will be more familiar with the global comparison that brings a certain height of perspective (Spencer Weber Waller, The Next Generation of Global Competition Law). Spencer Weber Waller thus puts the recommendations into perspective - prudent or disappointing? - adopted in 2007 by the Antitrust Modernization Commission. With regard to dualism, this commission agreed that the American system might seem strange, but that there would be more drawbacks (disruption and costs) than advantages to changing it. There is another area where William Kovacic could count, even if he was not a forerunner and was very reserved at one point: the contribution of competition law to the development of emerging countries (David Gerber, William Kovacic on Competition Law and Economic Development). This first part of the paper will be remembered for its broad historical and theoretical background, combined with first-rate practical experience.

Another recurring debate is the economic analysis and the haunting question of its increasing complexity. The 2010 Merger Guidelines seem to open the way to a wide range of evidence with the sibylline formula "any reasonable and reliable evidence." To market data, relating to prices, costs, quantities, demand estimates, one must add testimonials, documents on the perceptions of all the actors on the market, which can still feed prospective work on data calculations (Joseph Farrell, Market Data and Participants’ Views in Horizontal Merger Analysis). Can we hope, like Thomas Rosch, that the four major economic theories he has chosen (neo-classical economics or Chicago School, game theory economics or Post-Chicago School, experimentalist economics and behavioural economics) will move from the stage of confrontation to that of interweaving and that they will complement each other? In a constructive approach, Thomas Rosch proposes to resort to the elaboration of a rule of reason structured by presumptions of harmfulness harming consumers while leaving the proof to the contrary through efficiency gains to be borne by companies. This form of flexibility, which he sees adopted by the European Union with some success, therefore seems viable (Thomas Rosch, Antitrust Law Enforcement: What to Do About the Current Economics Cacophony?). The economic confrontation between economic schools has, as is well known, fuelled the political divide between Republicans and Democrats. It is therefore widely and repeatedly said that the degree and nature of antitrust enforcement depends on the political colour of the occupant of the White House. However, in this regard, William Kovacic has denounced the exaggeration of this analysis by pointing out the perverse effect it has had: a loss of credibility, even legitimacy, of antitrust law. To support the idea that political alternation is not so significant, a study was carried out from 1981 to 2011 on merger control (Roman Harty, Howard Shelanski, Jesse Solomon, Merger Enforcement Across Political Administrations in the United States). However, the rejection of the "narrative pendulum" does not convince. While the division and description of the periods may be caricatured, the political visions of how to deal with market imperfections are so sharply divided between Republicans and Democrats that it seems legitimate to expect sharp inflections in antitrust policy (John Harkrider, Antitrust Enforcement in a Rent-Seeking Society).

Problems specific to American jurisprudence are then discussed. This is the case of the treatment of joint ventures (Stephen Harris and John Fedele, Sorting Out the Analytical Mess: a Step-Wide Approach to Joint-Venture Analysis after Dagher and American Needle). Other issues will be of interest to a wider European audience. The tension between public and private enforcement is bound to raise interest (Roxann Henry, Criminal Cartel Prosecution: Consideration on Attempts to Compensate Victims). In view of the constraints that private action places on public action and the excesses denounced by the Americans themselves, the European scheme is viewed with interest (Andrew Gavil, Designing Private Rights of Action for Competition Policy Systems: the Role of Interdependence and the Advantages of a Sequential Approach). Attention should also be paid to the study showing the extent to which antitrust law has moved towards regulation: the Antitrust Division is reported to have resolved almost all of its civil cases by consent decree, as of 2004, and the FTC 93% of its cases by settlements agreements (Douglas Ginsburg and Joshua Wright, Antitrust Settlements: the Culture of Consent). The authors point out the risks of abuses, misuse and abuse, which can be detrimental to the consumer’s interest, even though cost and time savings in the face of limited resources are usually touted, as well as the speed of the remedy.

Other studies focus on European law. The impact of private actions on leniency programmes is seen through the prism of the administrative qualification of the documents whose disclosure is requested (Clifford Jones, The Quality of Mercy, and the Quality of Justice: Reflections on the Discovery of Leniency documents and Private Actions for Damages in EU). The interest in the determination of fines in the Commission’s decision-making practice has not yet been exhausted, as the method of assessing this practice still needs to be adjusted (John Connor, Has the European Commission Become More Severe in Punishing Cartels? Effects of the 2006 Guidelines: Revision).

Finally, as a foretaste of Volume II, comparative competition law already appears in Volume I, together with studies on foreign laws. The relativity of the comparison is underlined, which serves as a reminder that the United States has no lessons to teach the rest of the world and underlines how much modesty - natural or strategic? - by William Kovacic is particularly welcome in the context of the ICN (André Fiebig, The Normative Limits of Comparative Competition Law). However, the comparison is also stimulating (Jean-François Bellis, Article 102 TFEU: the Case for a Remedial Enforcement Model along the Lines of Section 5 of the Federal Trade Commission Act). It also makes it possible to reveal certain burdens and to take the international community as a witness, particularly in periods of transition, where the issues of transparency and conflicts of interest are exacerbated (Xiaoye Wang and Adrian Emch, Enforcement under China’s Anti-Monopoly Law: So Far, So Good?). The knock-on effect of a network culture, therefore, promises significant progress for all (Rachel Brandenburger, Antitrust Enforcement in a Network Culture: Opportunities and Challenges in the 21st Century).

This book, a vibrant and flamboyant tribute to William Kovacic - who amply deserved it - is a must for anyone who wants to understand the state of fundamental and recurring questions raised by American antitrust specialists in the Republican movement. And one looks forward to Volume II.

With contributions from: Alden F. Abbott, Theodore L. Banks, Thomas Barnett, Jean-François Bellis, William Blumenthal, Rachel Brandenburger,John M. Connor, Adrian Emch, Joseph Farrell, John Fedele, Andre Fiebig, Harry First, Albert A. Foer, Andrew I. Gavil, David J. Gerber, Douglas H. Ginsburg, John D. Harkrider, Stephen Harris, Ronan P. Harty, Roxann E. Henry, Hugh M. Hollman, Clifford A. Jones, James A. Keyte, Joseph Krauss, Abbott B. Lipsky, Joseph S. Nord, George L. Priest, James F. Rill, J. Thomas Rosch, Christian M. Rowan, Seth Sacher, Fiona A. Schaeffer, Kristin Shaffer, Howard A. Shelanski, Joe Sims, D. Daniel Sokol, Jesse Solomon, John M. Taladay, Theodore Voorhees, Xiaoye Wang, Spencer Weber Waller, Christine Wilson and Joshua D. Wright.

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