Judicial Treatment of the Antitrust Treatise

Posted by Social Science Research Network

Judicial Treatment of the Antitrust Treatise Hillary Greene (University of Connecticut) & D. Daniel Sokol (University of Florida)

Abstract: This essay examines Herbert Hovenkamp’s influence in antitrust law and policy, in the courts. This essay focuses its attention primarily with the Treatise and primarily in the area of merger law – procedural with issues of antitrust injury and substantively with merger efficiencies. The essay provides a case count citation analysis of Hovenkamp’s scholarship and compares Hovenkamp to other major figures in antitrust scholarship (Bork and Posner) and to the other antitrust treatises (Kintner and Sullivan) in the courts. Our meta-level findings show that Hovenkamp is far more cited than other treatise writers or scholars who have been recognized for their lifetime contributions to the development of antitrust law.

After offering some initial meta-level explanations on 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 and the efficiencies “defense.” Notwithstanding the extraordinary citation count associated with the Treatise, to the extent that his ideas have become institutionalized, that count my under-represent its influence.