Einer Elhauge, Apr 24, 2008
In a recent review of Global Competition Law and Economics, a book I co-wrote with Damien Geradin, John Kallaugher raises some interesting questions about the very premises of the book. These questions seem worth addressing because they go well beyond an assessment of the book to raise fundamental pedagogical issues about the best approach to teaching competition law in the 21st century. The fundamental differences are threefold. John Kallaugher argues that competition law courses should:
- (1) favor vocational training over analytical and economic issues;
- (2) limit their scope to a single legal jurisdiction; and
- (3) focus on procedure rather than substance.
The premises of the book are precisely the opposite, and conform to my own views about how best to teach a competition law course. First, competition law courses should focus on underlying analytical and economic ideas, rather than on vocational memorization of particular doctrinal formulations, mainly because it is the underlying ideas that drive the actual resolution of cases. Those ideas are thus central to good antitrust lawyering, as well as to a sophisticated understanding of the content of modern competition law. Second, competition law courses should abandon the blinkered focus on one legal jurisdiction, because the reality of modern international markets means that business and law firms must understand the combination of laws that apply to conduct and mergers, and ideas and trends in legal development constantly flow between jurisdictions. Third, competition law courses should focus on the substance of how cases are resolved, rather than fixating on procedural rules, because it is the substantive analysis that is more distinctive to competition law, harder for lawyers to learn on the job, and in the end determines how businesses can act.