Academic journal article Iowa Law Review

The Influence of the Areeda-Hovenkamp Treatise in the Lower Courts and What It Means for Institutional Reform in Antitrust

Academic journal article Iowa Law Review

The Influence of the Areeda-Hovenkamp Treatise in the Lower Courts and What It Means for Institutional Reform in Antitrust

Article excerpt

I. INTRODUCTION

It is often pointed out that while the United States Supreme Court is the final arbiter in setting antitrust policy and promulgating antitrust rules, it does so too infrequently to be an efficient regulator.1 And since the antitrust agencies, the Federal Trade Commission ("FTC") and the Antitrust Division of the Department of Justice ("DOJ"), rarely issue guidelines, and even more rarely issue rules or regulations, very little antitrust law is handed down from on high. Instead, circuits split, and lower courts must muddle through new antitrust problems by finding analogies in technologically and socially obsolete precedents.

When faced with this void of authority, especially covering cutting-edge antitrust issues raised by new technology and business arrangements, lower courts often turn to a single treatise, Antitrust Law: An Analysis of Antitrust Principles and Their Application, by the late Philip E. Areeda and Herbert Hovenkamp.2 The treatise's influence is such that Justice Breyer has remarked "that most practitioners would prefer to have two paragraphs of Areeda's treatise on their side than three Courts of Appeals or four Supreme Court Justices."3 Why courts are so influenced by the treatise is no secret: It is up-todate, technologically savvy, politically middle-of-the-road, economically literate, comprehensible, and comprehensive. The monopoly that Professor Hovenkamp (as the only living editor of the treatise) has inherited and lovingly maintains is certainly the kind of which antitrust would approve: It is a monopoly "thrust upon it"4 by simply being the best. But its dominance in lower courts and, therefore, in firm decision-making, should raise concerns among those who believe it was Congress's intent to put the courts, not a professor, in charge of antitrust policy.

The solution, of course, is not to force the lower courts away from the Areeda-Hovenkamp treatise; in the absence of binding authority, reliance on such a fine treatise can only improve antitrust jurisprudence. But this reliance may illustrate the need for institutional reform. It suggests that something should be done to solve the bottleneck problem at the Supreme Court and to encourage the antitrust agencies to issue more rules to guide firms in their business deals and lower courts in their resolution of disputes. This Essay explores the structural and institutional causes of the void of antitrust authority, explains how the Areeda-Hovenkamp treatise fills that gap, and identifies the legitimacy problems that inhere when lower courts treat a secondary source as speaking for the Supreme Court. Finally, this Essay points out how a more economically literate bench and Chevron deference to FTC antitrust rules would help alleviate the problem.

II. THE AREEDA-HOVENKAMP TREATISE IN THE LOWER COURTS

It is difficult to overstate the importance of the Areeda-Hovenkamp treatise. Whether evaluated quantitatively or qualitatively, the reach that the treatise has had on antitrust law and policy is staggering. The market power that Herbert Hovenkamp enjoys over influencing antitrust law in the courts is honestly gained, but no one can argue that he enjoys anything short of a monopoly.

A. THE TREATISE BY THE NUMBERS

The modern treatise-a 21-volume set, updated semiannually, 5950 pages long, and retailing for $42255-takes its origins in a three-volume set published by Harvard antitrust legends Philip E. Areeda and Donald F. Turner in 1978.6 Under the Areeda-Turner brand, it has been cited in over 500 federal cases;7 under the Areeda-Hovenkamp title, which was obtained after Professor Hovenkamp replaced Professor Turner in 1989, it has been cited in another 700.8 Many opinions cite the treatise repeatedly.9 That makes the treatise the single most-cited antitrust authority, including such ubiquitous cases as the Supreme Court's 1918 decision in Chicago Board of Trade, which established the "Rule of Reason," and the U. …

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