Editor's note: Philadelphia National Bank at 50 symposium

• Date: 01 June 2015

EDITOR’S NOTE:

PHILADELPHIA NATIONAL BANK AT 50

J. R

OBERT

R

OBERTSON

*

Handed down more than 50 years ago, the Supreme Court’s opinion in

Philadelphia National Bank (PNB)

1

continues to play a prominent role in con-

temporary merger decisions.

2

To celebrate the 50th anniversary of the opinion

and to discuss its relevance today, New York University School of Law held a

conference in 2013.

3

Participants in that conference contributed the articles

that follow to this Symposium, for which I, along with Rajesh James, served

as Symposium editor.

The interview with Judge Richard Posner in this issue resolves decades of

speculation about the authorship of PNB and establishes that Posner, as a judi-

cial clerk, wrote the majority opinion for Justice Brennan.

4

In PNB, Posner

* Member of the District of Columbia, Texas, and Illinois Bars and formerly the Chief Trial

Counsel at the Bureau of Competition of the Federal Trade Commission. While at the FTC, the

author was lead counsel for the agency on many matters, including Chicago Bridge & Iron,

Polypore International, CCC Holdings, Whole Foods (on remand), and for the defendants in

Laboratory Corp. of America, and H&R Block. This overview expresses the author’s views and

not those of any other party.

1

United States v. Phila. Nat’l Bank, 374 U.S. 321 (1963).

2

See, e.g., ProMedica Health Sys. Inc., v. FTC,749 F.3d 559, 568–69 (6th Cir. 2014) (a

merger between two hospital providers was presumptively illegal based on increased concentra-

tion); United States v. Bazaarvoice,2014-1 Trade Cas. (CCH) ¶ 78,641 (N.D. Cal. Jan. 8, 2014)

(a presumption based on concentration).

3

Conference on the Fiftieth Anniversary of United States v. Philadelphia National Bank,

held at New York University School of Law (Nov. 15, 2013).

4

Philadelphia National Bank at 50: An Interview with Judge Richard A. Posner,infra this

issue, 80 A

NTITRUST

L.J. 205, 206 (2015) (conducted as part of the program at the Conference on

the Fiftieth Anniversary of United States v. Philadelphia National Bank at the New York Univer-

sity School of Law (Nov. 15, 2013)). Judge Posner had also revealed his role in PNB in at least

one other recent interview. See, e.g., Interview by Kenneth Durr with Richard Posner, Securities

and Exchange Commission Historical Society Oral History Project (Jan. 25, 2011) [hereinafter

Interview by Kenneth Durr with Richard Posner], 3197d6d14b5f19f2f440-

5e13d29c4c016cf96cbbfd197c579b45.r81.cf1.rackcdn.com/collection/oral-histories/

20110125_Posner_Richard_T.pdf (“I incorporated the idea of a simple prima facie case. I got

that from Bok’s article.”) (citing Derek C. Bok, Section 7 of the Clayton Act and the Merging of

Law and Economics, 74 H

ARV

. L. R

EV

. 226 (1960)).

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