From the Editor: Spring 2009

Our Spring 2009 issue begins with a symposium on a selection of important judicial issues. Two American judges provide their perspectives on the use of economics in merger and antitrust cases. Judge Vaughan Walker, who presided over the Justice Department’s efforts to block Oracle’s acquisition of PeopleSoft, looks at the ability of economics to shed light on issues that judges care about in making their decisions. Judge Diane Wood, who sits on the Seventh Circuit Court of Appeals, gives a general look at the interaction between judges and the economic evidence that is presented to them. On the other side of the Atlantic Vivien Rose, who chairs the UK’s Competition Appeals Tribunal, examines the standards for reviewing the findings of competition authorities to whom the courts generally pay some deference. Ben Smulders, of the European Commission’s Office of Legal Services, addresses the impact of Commission guidelines and other pronouncements on judicial review.

The article is timely in light of the Commission’s recent guidelines on its enforcement priorities concerning exclusionary abuses under Article 82. We then turn to a series of articles on merger analysis. Two articles the first by Orley Ashenfelter, Dan Hosken, & Matthew Weinberg and the second by Dennis Carlton examine merger assessment. What evidence should we look at and how should we analyze that evidence to determine whether the enforcement agencies are too tough, too lenient, or just right? The next two articles by Ilene Knable Gotts & James Rill and FTC Commissioner William Kovacic examine the relationship between the vigor of merger enforcement and electoral cycles. Do the political views of the President affect merger approvals and how would we know? This issue’s current case concerns parallel trade for pharmaceuticals, focusing on the European Court of Justice’s ruling on a Greek case involving GlaxoSmithKline. Robert O’Donoghue and Louise Mcnab look in particular at how the Court dealt with the difficult tradeoff between low prices now and more innovation later.

The rest of the issue could not provide a better primer on the history of antitrust over the last half century. Bill Kolasky and Josh Wright offer contrasting views, as was intended but one never knows, on How the Chicago School Overshot the Mark a collection of articles engineered and edited by ex-FTC Chairman and current Professor Pitofsky. The reviews, and the book, provide an introduction to the evolution of economic thinking on antitrust. The issue ends with a reprint of excerpts from the so-called Neal Report, commissioned by President Lyndon Johnson and led by University of Chicago Law Professor Phil Neal, which advocated efforts to reduce concentration in American industry and proposed antitrust reforms to facilitate the reduction. The special treat is a short introductory essay by Herb Hovenkamp which neatly describes the evolution of industrial organization economics and the role of the structure-conduct-performance school in the recommendations. The contributors to this issue well deserve thanks from the editorial team and our readers. David S. Evans University College London and University of Chicago

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• From the Editor: Spring 2009