Synopsis
When the first edition of Gavil, Kovacic & Baker’s Antitrust Law in Perspective was published more than 20 years ago, the contours of antitrust law seemed relatively stable. More than two decades later, a robust debate has emerged in the U.S. and across the globe about the policy wisdom of that once stable direction and its future course. Skepticism of mergers is up, multiple major monopolization cases have been commenced, and non-U.S. jurisdictions, especially the European Union and the United Kingdom, have embarked on a path of greater scrutiny and regulation of digital markets. The U.S. antitrust world, as well as the wider competition policy world, now appears less stable.
For teachers, these developments present a challenge. How is it possible to teach “the law,” as it is, while also capturing the issues, debates, and challenges of the moment when the future course remains yet to be written?
With the fifth edition of Antitrust Law in Perspective, the three original authors have begun to take up that challenge. Although the overall structure of the book will be familiar to adopters, the authors have made many significant revisions to make the book more teachable, informed, and current. New material on digital markets has been added or expanded throughout, the treatment of the rule of reason post-Alston has been updated, Chapter 3 now includes a recent judicial treatment of agreement issues arising from algorithmic pricing, and Chapter 4 now includes a more in-depth treatment of the analytical challenges of the course of conduct/monopoly broth/aggregation issues that continue to arise in monopolization claims.
The authors have also revamped their treatment of mergers to incorporate and analyze the Merger Guidelines issued by the Federal Trade Commission and the Justice Department in 2023. Chapter 5 integrates the framing of the new Guidelines―particularly the way they divide analyses based on whether they are part of the plaintiff’s prima facie case or the merging firms’ rebuttal case―with the case law. It clarifies the relationship between the distinctions the case law makes among horizontal, vertical, and conglomerate mergers (including potential competition mergers), and the economic distinctions the Guidelines make among mergers that facilitate coordination, generate harms through the loss of head-to-head competition, harm competition by excluding rivals, or entrench the market power of dominant firms.
Finally, throughout the book the authors have revised and added new Notes and Sidebars, which have been a staple of the book since its first edition. These mini-articles allow adopters to selectively delve more deeply into topics of interest throughout the chapters, tailoring both basic and advanced courses to their teaching goals and interests.
The authors hope existing adopters will welcome these changes and join them in the challenge of teaching antitrust law in what might be viewed twenty years hence as a period of further doctrinal evolution. And they hope that new adopters will see a current and engaging book that will serve to interest their students in our field.
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