Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Assistant Attorney General Baer praises Herbert Hovenkamp’s work, (Oct 24, 2014)

By Greg Hammond, J.D.

In an address yesterday, William J. Baer, Assistant Attorney General in charge of the Department of Justice Antitrust Division, praised the work of Professor Herbert Hovenkamp, noting that his contributions are critical resources for practitioners, enforcers, and courts alike.

Baer’s remarks, entitled "Connecting the Antitrust Dots: In Praise of Herb Hovenkamp," were presented during the University of Iowa Law Review Centennial Symposium Honoring the Work of Professor Herbert Hovenkamp.

"Part observer, part interpreter, and part advocate, Herb has helped steer the evolution of our country’s competition policies," Baer stated. "He is the senior author of Antitrust law: An Analysis of Antitrust Principles and Their Application—the leading antitrust law treatise."

According to Baer, the country’s core antitrust statutes—including the Clayton, FTC, and Sherman Acts—offer broad principles that leave most details to be decided by the courts, heightening the importance of "thoughtful, independent analyses of antitrust law." However, to Baer, the Antitrust law treatise has repeatedly answered this call.

"What Professor Hovenkamp—like Professors Areeda and Turner before him—has done is three-dimensional," he said. "The treatise synthesizes, in a clear and accessible way, the current state of antitrust law, as well as the history and evolution of judicial precedent. It teases out the doctrinal principles that explain and inform key judicial decisions. And, it hangs these precedents on a coherent legal framework and describes the economic principles that gird its foundation."

Assistant Attorney General Baer also noted that the Antitrust law treatise and other works by Hovenkamp have been cited approvingly in nearly all of the U.S. Supreme Court’s significant antitrust decisions. The majority in Illinois Tool Works v. Independent Ink (2006-1 Trade Cases ¶75,144) cited the Antitrust law treatise when it explained that it makes no sense to recognize a presumption of antitrust market power after Congress explicitly eliminated the comparable presumption in the patent misuse statute. In addition, the treatise was cited in the Court’s Actavis (2013-1 Trade Cases ¶78,419) decision, providing primary and exclusive support that "an unexplainably large reverse payment is a strong indicator of market power and that it also provides a workable surrogate for a patent’s weakness."

"[P]ractical scholarship—epitomized by the contributions of Professor Hovenkamp—will remain a critical resource for practitioners, enforcers, and courts," Baer noted. "It will continue to shape the evolution of antitrust law and policy in our country and help ensure that vibrant competition drives our economy forward and improves consumer welfare for future generations of Americans."

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