September 24, 2009
Internationalizing the Antitrust course
Posted by Afra Afsharipour

This semester I am teaching Antitrust law to a group of eager students who are willing to take the class pretty early in the morning. I have now taught the class for a few years and have come across the same issue each year: how much of an international/comparative perspective should I bring into the course? On the one hand,  there is the worry that too much of a comparative perspective will confuse students in an introductory course who are trying to master the basic concepts. On the other hand, as can be seen in many cases, like the infamous lysine cartel playing at a theater near you, modern antitrust cases and practice have a vast global component.

There has been a dramatic increase in cross-border antitrust issues since the 1990s with more comprehensive antitrust laws being adopted around the world, such as China’s 2007 Anti-Monopoly Law, or antitrust regimes in India or Latin America. Furthermore, the European Union has played an aggressive role in antitrust enforcement in the past ten years, including against US companies and in challenging merger transactions between US companies. For example, the European Commission recently imposed a record $1.5 billion fine against Intel (which Intel claims violated its human rights) and has released a very lengthy decision laying out its evidence and justifying this enormous fine. In another high profile matter, the Europeans have decided to extend their investigation into Oracle’s $7.4 billion acquisition of Sun Microsystems which the Department of Justice had already approved back in August without any conditions. Antitrust scrutiny of horizontal mergers is just one of the areas in which Europe and the US have diverged. Some antitrust scholars like Jonathan Baker and Carl Shapiro have argued “ in favor of reinvigorating horizontal merger enforcement" and statements by Christine Varney, who heads the Department of Justice antitrust division, also indicate that there will be greater merger review in the US. It is too early to say whether antitrust enforcement by the US and EU will converge, although the big players have been talking regularly. And on the merger front, the DOJ and the Federal Trade Commission will be holding joint workshops  to determine whether the Horizontal Merger Guidelines need to be updated “in light of legal and economic developments that have occurred since the last major revision of the guidelines” in 1992.  Assistant Attorney General Varney, in a  recent speech discussing international convergence of competition policy regimes (HT: Antitrust Law Prof Blog), stated that this modification process will be done with "an openness to others' ideas and new approaches."

These types of developments indicate a need for the introductory Antitrust course to take a global view. Of course, the challenge is how to convey the essential substantive material that should be covered in the class with the undertaking to help students comprehend the global nature of current Antitrust practice. Undoubtedly, the degree to which one should/can bring a global perspective comes up in numerous other courses.  I am not sure that I have any solutions yet, but I am planning on internationalizing at least some of the material covered in my Antitrust course.

Antitrust, Comparative Law, Teaching | Bookmark

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