Judicial Treatment of the Antitrust Treatise

Author:Hillary Greene & D. Daniel Sokol
Position:Professor of Law, University of Connecticut School of Law/Professor of Law, University of Florida Levin College of Law; Senior Research Fellow, George Washington University Law School Competition Law Center
Pages:2039-2068
 
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2039
Judicial Treatment of the Antitrust
Treatise
Hillary Greene and D. Daniel Sokol
I. INTRODUCTION ........................................................................... 2040
II. ANTITRUSTS STRUCTURAL SHIFT AND THE ROLE OF THE
TREATISE ..................................................................................... 2041
III. HOVENKAMPS INFLUENCE IN ANTITRUSTS REVOLUTION ......... 2044
A. THE INFLUENCE OF HOVENKAMP AND OTHER PROMINENT
ANTITRUST THINKERS ........................................................... 2046
B. CITATION ANALYSIS REGARDING THE ROBERTS COURT ........... 2047
C. HOW HAS THE ROBERTS COURT CITED HOVENKAMP? ............ 2048
D. HOVENKAMP COMPARED TO OTHER ANTITRUST TREATISES .... 2049
IV. HOVENKAMP AND PROCEDURAL ANTITRUST IN MERGERS .......... 2050
V. BASIC CITATION STATISTICS REGARDING ANTITRUST MERGER
RULINGS ...................................................................................... 2054
VI. THE EVOLUTION OF THE TREATMENT OF EFFICIENCIES IN MERGER
LAW AND POLICY ......................................................................... 2057
VII. CONCLUSION: INFLUENCING THE COMMON LAW ....................... 2067
Professor of Law, University of Connecticut School of Law. I am grateful to Robert
Fontaine and Maria Jorge at the University of Connecticut School of Law for their assistance with
Parts V through VI of this Essay.
 Professor of Law, Un iversity of Florida Levin College of Law; Senior Research Fellow,
George Washington University Law School Competition Law Center.
2040 IOWA LAW REVIEW [Vol. 100:2039
I. INTRODUCTION
Herbert Hovenkamp has had a tremendous impact in antitrust
scholarship. With over 4000 citations in the Westlaw JLR database (most of
which are for his antitrust scholarship), Hovenkamp is one of the most cited
scholars in legal academia and has been recognized by the legal academy and
the bar for his contribution to antitrust.1 Hovenkamp’s total citations are in
part a function of his academic outputs; with 12 books (including
monographs, edited books, and case books), plus the two-volume treatise on
IP and Antitrust and the 21-volume Antitrust Law: An Analysis of Antitrust
Principles and Their Application (“Treatise”),2 Hovenkamp could fill multiple
shelves of most libraries. He has also published over 200 book chapters,
articles, and book reviews.
Hovenkamp’s scholarship has not only shaped academic discourse but
also that of the courts.3 Justice Breyer once remarked that litigants “would
prefer to have two paragraphs of [the Areeda–Hovenkamp] treatise on their
side than three Courts of Appeals or four Supreme Court Justices.”4 One
review of Hovenkamp’s work explains, “Hovenkamp speaks with oracle-like
authority on antitrust matters.”5
This Essay examines Hovenkamp’s influence on antitrust law and policy
in the courts. Part II explains the role of the Treatise and Hovenkamp’s
academic writing in antitrust law and policy. This Part focuses primarily upon
the Treatise within the merger law context—procedurally with issues of
antitrust injury, and substantively with the case law regarding merger
efficiencies. Additionally, this Essay provides a case count citation analysis of
Hovenkamp’s scholarship which indicates that Hovenkamp is cited more
heavily than other prominent treatise writers or scholars in the field of
antitrust law.
After Part III provides some initial meta-level explanations regarding
Hovenkamp’s “market power” in federal court opinions, this Essay undertakes
a textual analysis of court citations to the Treatise and scholarship within the
context of merger law both procedurally and substantively and, more
specifically, antitrust injury (in Part IV) and the efficiencies “defense” (in
1. Bill Baer, Connecting the Antitrust Dots: In Praise of Herb Hovenkamp, 100 IOWA L. REV.
BULL. 1, 1–2 (2014).
2. See Herbert Hovenkamp, The Areeda–Turner Treatise in Antitrust Analysis, 41 ANTITRUST
BULL. 815, 816 (1996) (providing a history of Antitrust Law: An Analysis of Antitrust Principles and
Their Application from its inception in 1978 through 1996). The Treatise was originally authored
by Phillip E. Areeda and Donald F. Turner. Id. Hovenkamp’s work on this enterprise began in
1984 and is ongoing. Id. Numerous scholars have contributed to the Treatise over the years
including: Roger D. Blair, Christine Piette Durrance, Einer Elhague, and John L. Solow. See id.
Its current volumes span the work’s third or fourth edition.
3. See generally Rebecca Haw Allensworth, The Influence of the AreedaHovenkamp Treatise in the
Lower Courts and What It Means for Institutional Reform in Antitrust, 100 IOWA L. REV. 1919 (2015).
4. Stephen Breyer, In Memoriam: Phillip E. Areeda, 109 HARV. L. REV. 889, 890 (1996).
5. Daniel A. Crane, Antitrust Modesty, 105 MICH. L. REV. 1193, 1193 (2007).

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