Herbert Hovenkamp liber amicorum: The dean of American antitrust law, Nicolas CHARBIT and Sébastien GACHOT (dir.)

Nicolas Charbit & Sébastien Gachot (eds.)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

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The liber amicorum tradition continues to grow in the United States thanks to the impetus of Concurrences. The title leaves no doubt as to the eminence of the person celebrated: "the dean of American antitrust law" is the expression chosen by the New York Times to designate the recipient of the famous John Sherman Award. The nickname stuck. As David Gerber points out in the introduction to this anthology, Herbert Hovenkamp is a landmark, an anchor in a period of great turbulence for American antitrust law.

The first part situates Herbert Hovenkamp’s position in the struggles between American schools of thought. Christopher Yoo presents him as the leader or "champion" of the New Harvard School. As his contributions have often been misunderstood, Christopher Yoo makes a point of exposing, with precise quotations and references, the fundamentals that make up the core of his doctrine. He explains how Herbert Hovenkamp distanced himself from the Harvard School, even though he was a co-author with Phillip Areeda and Donald Turner in the writing of the famous treatise Antitrust Law: An Analysis of Antitrust Principles and Their Application, then how he denounced the excesses of the Chicago School’s revolution and, finally, how much he criticized the Post-Chicago trend for the "unadministrability generated" by the complexity of the techniques of economic analysis, which are so inaccessible to judges. Even if the new Harvard School and the Chicago School have come closer together, Herbert Hovenkamp should be placed in a (just?) middle ground between the original Harvard School and the Chicago School. This shows how nuanced his assessments are. However, it should be noted that, in the uncertainty of economic analysis, he sided with the Chicagoans in favour of a principle of non-intervention. Similarly, the new Harvard School stands against the populism that dominated the Warren Court era, as does the Chicago School. It is hardly surprising, then, that it also stood against the so-called "Neo-Brandeis" or "Hipster antitrust" movement. The line he drew was that incorporating extraneous efficiency goals would be costly, create insecurity and "capture", and be as futile and demagogic as it is unadministrable. The cornerstone for him is "consumer welfare". As for the debate on digital platforms, Herbert Hovenkamp dismisses the criticism of monopoly insofar as non-platforms are competitors of platforms, products are differentiated, the "winner-take-all" formula is rarely true and few platforms are natural monopolies. He rejects the idea of special regulation and prefers the application of antitrust law. He considers any recourse to dismantling inappropriate and prefers remedies. To conclude this section, the article by Barak Orbach, Daniel Sokol and Jane O’Connell winks at him by seeking to establish his "dominant position" through the quantitative study of citations to his work.

The hot topic of reform is addressed again in the second part. Thomas Lambert vigorously defends the fundamental conception of antitrust promoted by Herbert Hovenkamp. First, the purpose of antitrust law is to serveconsumer welfare. To achieve this, antitrust should capture agreements and foreclosures that strengthen or protect the holders of market power, but not the mere exercise of market power. Guidelines should minimize the risk of error and cost. However, most behaviour is amixed bagwith advantages and disadvantages. Also, Type I and Type II errors are intertwined. For this reason, Herbert Hovenkamp has worked to develop standards or analytical grids to facilitate the work of judges in handling evidence. Thus, the reform of antitrust law arouses Herbert Hovenkamp’s distrust. Antitrust law is not only sufficient, but is already well equipped to regulate possible abuses. Secondly, the degree of concentration in the economy must be put into perspective. Finally, the drafts do not bring improvements, but destructure the whole of antitrust. As a counterpoint, John Newman tries to show that the challenge coming from the hipster antitrust movement leads to a debate on consumer welfare which is ultimately appropriate: "’consumer welfare’ standard might not be a ’consumer welfare’ standard at all. Instead, it may be something more like a ’trading-partner’ welfare standard". In the field of private enforcement, Maria Ioannidou, a member of the Greek authority, skilfully demonstrates the reversal of the Illinois Brick case law that Herbert Hovenkamp was calling for. In this respect, he would be in line with the position of the Union law on the diversity of the victims who can act.

The third part continues the deepening of the role of economics in antitrust law. Daniel Crane notes a paradox in the Chicago School: having wanted to strengthen economic analysis and finally having fallen into ideology, even "religion". This is the sense of the demonstration brought by Fiona Scott Morton and Herbert Hovenkamp in a reference article, "Framing the Chicago School of Antitrust Analysis", in 2020. In a very scathing approach, Richard Markovits reviews a large number of economic tests of legality and illegality, undoes them and gives clues to rebuild everything. The task seems immense.

Collective bargaining, which was of particular interest to Herbert Hovenkamp, is the subject of an independent section with the problem of exemption. It is illustrated both from the American point of view with Marina Lao and from the European point of view with Mariateresa Maggiolino.

The fifth part is the most nourishing, as Herbert Hovenkamp’s contribution has prevailed in the relationship between innovation, intellectual property rights and antitrust law. Thomas Horton offers a study based on economic history to help detach oneself from "misguided economic clichés", notably Schumpeter’s "the creative destruction". He also relies on the analysis of Christina Bohannan and Herbert Hovenkamp: "neither Schumpeter nor Arrow had it exactly right, although Arrow was somewhat closer". It is the theory of the inverted U that has been favored to shed light on the link between market structure and innovation. In the end, the "competition, not competitors" leitmotif chanted by conservatives paradoxically ends up protecting dominant firms from small entrepreneurs and inventors. In order to develop a more convincing policy, Thomas Cotter proposes three principles: not to consider that stronger intellectual property rights and weaker antitrust would be sufficient to strengthen innovation; to check whether other branches of law could effectively deal with the situation at hand; and to exfiltrate as much as possible ideological preconceptions and stick to the facts. As for Gabriella Muscolo, she considers innovation through the prism of "consumer and social welfare" in times of crisis of Covid-19.

Finally, collusion is examined through a series of case studies. Roger Blair and Christine Piette Durance examine collusion in the oocyte market among fertility clinics. Christopher Leslie examines the diversity of evidence of collusion and William Page and John Lopatka examine "hybrid restraints".

Two salient features run through these contributions. The impact of ideology in American antitrust debates weighs heavily, and there are strong calls to return, in the manner of Herbert Hovenkamp, to scientific rigor. The call is equally urgent for Herbert Hovenkamp to illuminate the future of antitrust. A liber amicorum is ultimately an invitation to continue fruitful exchanges with the honored personality.