The Antitrust Religion. Edwin S. Rockefeller
council. The section has 28 general committees, 6 administrative committees, 3 program committees, and 7 publication committees. There are also 11 special task forces.
During 2006 the section of antitrust law scheduled meetings in New York and Washington, as well as at Chateau Montebello in Montebello, Canada; the Savoy in London; Halekulani, Honolulu, Hawaii; St. Regis Monarch Beach Resort, Dana Point, California; and the Sanctuary, Kiawah Island, South Carolina. The largest gathering of the membership occurs during the annual spring meeting in Washington, timed for the cherry blossoms. At the 2006 meeting in late March, 2,200 members had preregistered before the meeting began. The fee was $725. Participants came from 43 states and 38 countries. For dinner, 118 tables seating 10 persons each were sold out. “Non-government” people paid $135 for a seat; “government, academic, and students” paid $95. Cocktails were provided at massive receptions sponsored by law firms.
As of June 30, 2005, the section’s finance officer reported reserves of $7,320,980. Operations during fiscal year 2003–2004 produced net revenues of more than $900,000. The budget for 2006–2007 projected net revenues of $275,000. In return for paying dues, ABA members receive the Antitrust and Antitrust Law Journal three times a year and the opportunity to participate in section activities. They also receive discounts on publications sold by the section. Members prepare reviews, manuals, handbooks, guides, and monographs. Those are then sold to the general public for hundreds of thousands of dollars a year. Antitrust Law Developments (5th ed.), described in the publications catalog as a “must have” for the antitrust practitioner, is hardbound in two volumes totaling 2,000 pages and priced at $365. An annual supplement is available at $115. The publications catalog itself consists of 36 pages. Included are three merger books priced at $149.95 each. Two are second editions and the third is a third edition. A 171-page paper titled Market Power Handbook is available at $134. The 2006–2007 budget planned for gross revenues of $737,063 from publications.
Waller’s overview of the situation follows:
The antitrust world, to a large extent, is driven by the American Bar Association Antitrust Law Section and the antitrust partners of the large law firms which dominate the Section and handle the vast majority of large antitrust matters. The ABA Antitrust Section provides the most direct opportunities to demonstrate that you are a member, and major player, in the antitrust club…. [ABA] socialization … provides … the language and acculturalization to work the halls of power and interact with practitioners of similar backgrounds who may be friends, foes, or the government decision-maker in any given matter, and who may surface in the same or different posture in the next matter.3
Members of the antitrust community aren’t likely to offer any serious criticism of enforcement policy or to develop any constructive proposals for reform except as related to procedures or the elimination of statutory exemptions from the antitrust laws. Anyone dealing closely and continuously with antitrust is busy profiting from the status quo. The ABA antitrust section has become a cheerleader for whatever government activity is currently in fashion and its global extension. The section’s long-range plan states that part of its “mission” is “enhancing its role as the preeminent source for analysis, debate and continuing legal education in the antitrust, competition law, competition policy and consumer protection fields.” Its charter states that within its mandate is “the development of active antitrust enforcement” (emphasis added). In April 2002 that meant “support for full funding of the federal antitrust enforcement agencies.’’4 No systematic review or evaluation of such activism is ever undertaken. The basic questions—for example, did this proceeding make any sense or accomplish anything?—are seldom asked at meetings or in publications of the section. Instead, officials responsible for continuation of fiascoes such as the Justice Department’s fruitless campaign against IBM and the FTC’s pursuit of an imaginary “shared monopoly” of ready-to-eat cereal manufacturers are given “achievement awards” for their contributions to the community.5
In 1958 a Committee on Antitrust Policy of the Twentieth Century Fund published a report based on a review of antitrust history in 20 industries, concluding the following:
By this time several hundred cases have ended in decrees of various sorts designed to bring about changes in market structures and business practices. Yet very little time and effort have been spent, either inside the government or out, in assessing the effects of these decrees on the behavior of firms or the status of competition in the affected industries. How differently do the firms encompassed act from the way they would if a case had never been brought? Is competition, in some meaningful sense of the word, noticeably improved? Almost no one has bothered to enquire.6
The Antitrust Modernization Commission Act of 2002 created a commission consisting of 12 distinguished members of the antitrust community and gave the commission $4 million over a period of three years to make recommendations about “issues and problems relating to the modernization of the antitrust laws.”7 The assistant attorney general for antitrust, having been asked to provide his views as to topics that the commission might study, suggested that the group “should consider engaging respected experts (including those who do not earn their living providing antitrust services) to design a rigorous study of the effects of antitrust enforcement.” The commission emphatically rejected the suggestion. At a forum during the 2005 spring meeting of the antitrust section one commission member said that a study of empirical data as to what, if any, benefits result from antitrust activity would be too difficult because the data are not readily available, and the commission had better uses for its resources.
Those actively engaged in antitrust practice must talk as though there are ascertainable rules that make sense and do their best at “the relatively sterile function of weaving together old decisions in an attempt, usually futile, to design a legal fabric at once a little more appealing to their clients’ needs and to the courts’ tastes.’’8 Members of the antitrust community, when advocating change, usually restrict themselves to “remedies” and procedures. They are reluctant to evaluate results or to analyze judicial attempts to state normative rules. They find it difficult to stand apart from existing doctrines that they are continually obliged to advocate.9
Law School Indoctrination in Elements of Antitrust
Antitrust, as distinguished from the antitrust statutes that anyone can look up in the U.S. Code, is a mystical collection of persistent beliefs, not necessarily based in either fact or law or subject to control by Congress. Those beliefs are kept alive and transmitted to new generations by members of the antitrust community at bar association conferences and in law schools. At an Antitrust Masters Course in Sea Island, Georgia, one prominent member of the antitrust community told would-be masters paying a substantial attendance fee that “it is important to go beyond a list of ’do’s’ and ’don’ts’ and try to explain, on a deeper level, what the antitrust laws are all about.’’10
Antitrust masters must get beyond mere interpretation of legal requirements enacted by legislatures and administered by government officials because there are few fixed rules. They must sense at a “deeper level” the meaning of it all. The principal vehicle for transmission of this learning once was study of court opinions and casebooks containing them, but much court doctrine is now acknowl-edged by the antitrust community as out of date. “The traditional law school casebook misses the point of modern antitrust law and practice,” writes Waller.11
Compilers of casebooks have had to recognize the futility of trying to portray antitrust as a unified coherent system of law. Some have turned their courses into history courses presenting endless unanswerable questions.12 Some have attempted to distinguish themselves by “a balanced, diversified approach in presenting a wide spectrum of ideas regarding the goals and economic underpinnings of antitrust law” permitting the students “a larger perspective for individual choice.’’13 One trio of professors has produced a casebook titled Antitrust Law in Perspective: Cases, Concepts and Problems in Competition Policy14 in which they attempt to bring the student closer to reality. According to one book review, the authors “avoid formal categories” and “focus, instead, on economically based concepts.” The