Island, Georgia, one prominent member of the antitrust community told would-be masters paying a substantial attendance fee that “it is important to go beyond a list of ’do’s’ and ’don’ts’ and try to explain, on a deeper level, what the antitrust laws are all about.’’10
Antitrust masters must get beyond mere interpretation of legal requirements enacted by legislatures and administered by government officials because there are few fixed rules. They must sense at a “deeper level” the meaning of it all. The principal vehicle for transmission of this learning once was study of court opinions and casebooks containing them, but much court doctrine is now acknowl-edged by the antitrust community as out of date. “The traditional law school casebook misses the point of modern antitrust law and practice,” writes Waller.11
Compilers of casebooks have had to recognize the futility of trying to portray antitrust as a unified coherent system of law. Some have turned their courses into history courses presenting endless unanswerable questions.12 Some have attempted to distinguish themselves by “a balanced, diversified approach in presenting a wide spectrum of ideas regarding the goals and economic underpinnings of antitrust law” permitting the students “a larger perspective for individual choice.’’13 One trio of professors has produced a casebook titled Antitrust Law in Perspective: Cases, Concepts and Problems in Competition Policy14 in which they attempt to bring the student closer to reality. According to one book review, the authors “avoid formal categories” and “focus, instead, on economically based concepts.” The book contains an introduction to the study of antitrust law with “three themes’’: (1) how antitrust is “evolving from the analysis of discrete categories of behavior toward reliance on a set of core concepts,” (2) the “unfolding trend toward globalization of antitrust law,” and (3) “skills demanded of the antitrust lawyer.” The book is characterized as “a casebook for our time.’’15
A primary assumption behind years of antitrust teaching—that the antitrust laws provide a coherent, rational, and discoverable set of rules by which to evaluate behavior—can no longer be taken seriously. Yet that situation cannot be directly addressed. Antitrust law professors cannot admit that the antitrust community is administering a system of mere regulatory hunches by those who happen to be in decisionmaking positions, but that is the implicit thesis of the casebook for our time. To be an antitrust lawyer in our time, one must grasp “concepts” that are “evolving” to get to “a deeper level” of “what the antitrust laws are all about.” To develop that skill, one must study handbooks, manuals, guides, monographs, and reviews. The student must go beyond “formal categories of behavior” and “focus” on “core concepts” to understand how antitrust law is “evolving.” Meetings must be attended and lectures listened to. Indoctrination by elders of the community must be absorbed.
Students of antitrust are taught to answer questions in a language of metaphors. The notion is conveyed that the word game students are trying to learn and the concepts they are struggling to grasp are scientific descriptions of real-world phenomena, not just metaphorical descriptions of an imagined one. Numbing students’ minds begins by introducing the untranslatable word “antitrust,” which has no fixed content. Where the word came from and its lack of definition are not discussed. Professors of antitrust law, such as those at Harvard quoted in chapter 1, are at ease with the regal personification of antitrust implied in terms like “antitrust’s domain,” “the task of antitrust,” and “the targets of antitrust.’’16 Such professors are able to work with the explicit personification of antitrust by the use of active verbs in phrases like “antitrust seeks” and “antitrust does not take for granted’’17—implying that the professor is on speaking terms with the seeker or doer, and that someday the student may be, too.
Law school casebooks still present the material under a table of contents that suggests the subject matter can be organized into a coherent system of discoverable rules constraining the decision-maker, rather than only gaseous concepts that permit unpredictable results based on hunch or whim. Because “antitrust” has no fixed meaning, neither can “antitrust law.” Repeated use of the terms “antitrust” and “antitrust law” gives students the feeling that the terms have a definite meaning when they do not. That is not explicitly acknowledged. Instead, students are told that antitrust “is a unique blend of intellectual theory, social policy, political economy, microeconomics and law.’’18
Sinister-Sounding Terms—Self-righteous Feelings
The antitrust community invents sinister-sounding terms for natural phenomena and enjoys a feeling of self-righteousness in protecting the public from those evils. The antitrust process is said to be a “complex” one “by which the policymaker must select among competing policy values.’’19 That makes policymakers of all those making antitrust decisions. An important part of the process is affixing to freely-arrived-at contracts between consenting adults labels that imply the use of force when none is involved. That is done by the use of misleading metaphors, such as “market power,” “market control,” and “market dominance.” A firm that made 40 percent of the sales in some past period is said to “control” 40 percent of the market. A firm that sold more of something than any other seller is said to “dominate” the market. But control or dominance results from offering for sale something that people want to buy. People can’t be forced to buy. There is no force involved. No one is controlled or dominated. In some cases the supposed antitrust victim is not the party supposedly controlled or dominated but might like to be— someone who may have been deprived of an opportunity to sell. For instance, as in “reciprocity” (I won’t sell to you unless you buy from me) or “exclusive dealing” (I won’t sell to you if you buy from anyone else). In other cases such as “tying” contracts (if you want to buy my machine, promise to buy my salt or ink or punch cards that go in it), the supposedly injured party may not have the machines to sell. In cases of “predatory pricing” (selling at prices lower than those at which competitors wish to sell) or “predatory buying or predatory bidding” (buying at prices higher than those at which competitors wish to buy), nothing predatory is occurring. People are simply making freely-arrived-at contracts of purchase and sale.
The multiple goals of antitrust provide psychic income to all parti-cipants by applying sinister-sounding labels to natural business activities. No matter whom antitrust community members are repre-senting, they can feel that they are serving the public interest. on one side of the argument, lawyers are defending economic efficiency and consequent consumer welfare. on the other side of the argument, lawyers are defending the right of the little man to fundamental fairness, protecting him from being controlled, dominated, or excluded by forceful and predatory behavior. on either side, antitrust lawyers can feel that they are doing the right thing for others while doing well for themselves.
During the past 50 years antitrust lawyers, like most lawyers generally, have made a transition. Most formerly independent pro-fessionals chosen by clients for objective judgment, knowledge, and integrity have had to become self-promoting participants in institutional commercial operations sustained by expensive advertising and active business solicitation. In the early years, programs of the ABA section of antitrust law identified speakers only by their individual names; law firm names were never printed in the program. That has changed. Lawyers no longer practice law under their own names but under an established institutional trade name. No name is complete without an institutional affiliation. Some combine both law firm and academic connections, using one or the other as best suited for the occasion. For most, practicing law means serving as replaceable cogs in huge wheels grinding on at high hourly rates churning out memos, reports, briefs, and depositions for clients of “the firm.” A few of the more independent-minded have become buccaneers who invent a class of supposed victims, elbow their way to the head of a parade of others doing the same, and then shake down defendants for huge settlements resulting in little, if any, benefit to the purported “clients” but handsome fees for the lawyers.
That
