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Friday, July 16, 2010

Research Agendas: Mine and How I’ve Strayed

Posted by Spencer Weber Waller

I wanted to use this last post to take up Danny’s invitation to talk a little bit about my personal research agenda.  I have been teaching full-time for exactly twenty years now, split evenly between Brooklyn Law School and Loyola University Chicago School of Law.  Because I have served as Associate Dean at both schools, I have long urged my colleagues to develop and stick to a research agenda which sets out what they hope to accomplish over a three to five year period.

The idea is to think beyond your next article and try to articulate some themes that you will be developing in a series of projects for the medium term, without being an automaton who never has time to undertake other types of interesting projects because they are not on the list.  At the same time, the goal is also to avoid being an aimless wanderer exploring one unconnected idea after another without any visible connection.  For most people, a realistic research agenda can include a major theme and normally a minor theme.   I have had wonderful colleagues who have pursued different streams of scholarship on topics such as health care decision making by mature minors and then occasionally switched to shorter pieces on teaching pedagogy; or focused on incorporating happiness (not utility) into legal regimes with occasional forays into class actions and other complex litigation issues.

Only the most prolific can have multiple themes, or no themes at all, and thrive in legal academia.  It is critical to have some kind of a plan that you can articulate to hiring committees, deans, colleagues, and mostly important yourself when you are deciding on what projects to pursue, what symposia to attend or speak at, and most importantly when to say no (or at least not now) to interesting projects that are likely to be lengthy and unproductive detours.   So to practice what I preach let me give you an outline of my research agenda over the years and how it has evolved. 

When I entered academia, I was interested in two main themes that I was lucky enough to be able to explore in both my teaching and writing.  The first concerned the relationship between competition law and international trade law.  The second concerned the international application of US antitrust law to international commerce and the constraints imposed by jurisdictional limitations, comity, sovereign immunity, the act of state doctrine, the foreign sovereign compulsion doctrine, and related concepts. 

Looking back at my cv, I think I stuck reasonably well to my plan.  Most, but not all of my early articles, stuck to either or both of these themes.   Recognizing the specialized and international nature of most of this work, I am not surprised that these articles more typically appeared in specialty international law journal.   Outside events also affected the importance of these issues and my interest in continuing to pursue them in extended law review format.   Once the Supreme Court in Hartford Fire largely settled (rightly or wrongly) the debate over the proper role of comity in the extraterritorial application of the Sherman Act, I took one final swing at this topic (The Twilight of Comity, 38 Colum. J. Trans. L. 563 (2000), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=988189) and moved on.  I continue to follow these topics in updating a treatise but have addressed other topics moving forward.

Somewhere in the middle of these early years of teaching, I also became interested in the history of antitrust law and certain key figures of that history.  First as a sidelight, and then as a more significant focus, I explored the antitrust thought and significance of such figures as Oliver Wendell Holmes, Robert Jackson, Edward Levy, Walton Hamilton, Milton Handler, Thurman Arnold, and eventually John Paul Stevens.  These inquiries exposed me to the joys and frustrations of archival research and the other tools of the trade of legal history.  Some of these inquiries proved to be frolics and detours but others turned into full articles, symposium pieces, or review essays. 

In the course of this research, I discovered what a truly unique person Thurman Arnold was besides his importance to US competition law.  I began to search for a biography to read about him and became immensely frustrated when I realized that none existed.  It was only sometime later that I took advantage of a research leave to do the archival research and interviews to produce that first biography of this complex and fascinating man who contributed so much to 20th century law and legal thought in addition to being a giant of the antitrust field as well. (Thurman Arnold: A Biography  http://www.amazon.com/Thurman-Arnold-Spencer-Weber-Waller/dp/0814793924/ref=sr_1_1?ie=UTF8&s=books&qid=1261424343&sr=8-1).

Along the way to working on the Thurman Arnold biography, I stumbled on the work of the business strategist Michael Porter, who was trained as an industrial organization economist.  His conception of competition opened up for me my next significant stream of scholarship.  I became increasingly interested how business scholars wrote about competition and how business schools taught business decision makers about this critical subject.  Over time, I focused on how business theory taught how to achieve durable market power through different techniques and strategies.  There appeared to be a serious disconnect with much of antitrust economics which often denied that such durable power is possible and more generally pays no attention to the business theory world.  In different articles, I have explored (and am still exploring) how the business world thinks, talks, and acts regarding strategic management, marketing, corporate finance, corporate governance, and brand management and how those concepts can be applied in the antitrust realm.

I find it odd that most of antitrust discourse ignores the discourse of the very business actors whose behavior is the subject of antitrust law in the first place.  My goal is to take the best of this business discourse and bring it into the antitrust debate as a supplement to the economic analysis we use on a daily basis.  The most recent example is Brands, Competition and the Law which I co-wrote with Deven Desai, who is now the academic liaison at Google.  It will be published sometime in the fall in the BYU Law Review and is available in draft form at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1545893.   Long-term, maybe this is a book or maybe just a couple more articles until I have exhausted the topic and my initial excitement on how business theory can be an important supplement to the way we currently think about antitrust.

Finally, a word about the essential facilities doctrine.  I always thought MCI got it right, Trinko got it wrong, and the rest of the world gets it more or less correct.  So after Trinko, I pursued a path which eventually turned into four articles (two with co-authors) where I critiqued Trinko; developed a theoretical framework for a well reasoned and cabined essential facilities doctrine; addressed some of the original critiques of the doctrine going back to a classic article by Phil Areeda; and surveyed how most of the major antitrust jurisdictions outside the U.S. handle similar issues.   I never particularly intended it to play out that way.  One thing just led to another.  Now I’ve had my say, people will agree or disagree, and I don’t plan to return to that subject any time soon.

On too many occasions, I have failed to follow my own advice and taken on projects that had nothing whatsoever with the themes I have described above.  Besides my abiding love for all things baseball, I have at least tried to stick to at least of whatever were my current themes at any given time.  When I have strayed from this path, and said yes to fun but unconnected projects, I have done my best to at least make them something short, like a symposium piece, an unpublished conference talk, or a book review.  At a minimum, I have tried to make such unrelated projects an “extra” and not an “instead of.”  I will leave it to others to determine how well I have succeeded.

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