Judicial Treatment of the Antitrust Treatise

I. INTRODUCTIONHerbert 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."5This 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 Parts V-VI). Notwithstanding the extraordinary citation count associated with the Treatise, to the extent that his ideas have become institutionalized, such numbers may even understate its influence.6 This is because citations to cases that embody its ideas do not necessarily cite to the Treatise. Part VII concludes that Hovenkamp has played an important role in the development of antitrust law.II. ANTITRUST'S STRUCTURAL SHIFT AND THE ROLE OF THE TREATISEThe shape of antitrust's economics revolution in policy circles rests largely upon decided cases. At the macro level, in isolation, ideas do not shape case law. The institutional structure of the U.S. antitrust system is a function of the moment in time in which it was set up (its initial endowment) and its institutional development based upon case law and relevant policy developments.7 Though there is some path dependence to the initial endowment, over time the path dependence can be shifted to incorporate new developments in areas such as judicial interpretation, economic thinking, and broader macro-level government policies and priorities.8During the 1970s, antitrust began its revolution to a more economicsbased approach.9 Both procedurally and substantively, the antitrust doctrines of today bear little resemblance to those of a couple of generations ago.10 As Bohannan and Hovenkamp explain:The story of antitrust reform is well known. The half-century period that ended in the late 1970s had seen many antitrust infidelities, mainly from expansion that today seems unprincipled, given that injury to competition was so often absent.....Today, the antitrust landscape differs so much from the view of Brown Shoe that one could barely recognize it from that vantage point.[11] The reformation of antitrust involved not only the development of a coherent theory of harm related to the underlying goals of the antitrust laws, but also a major revision in substance. …