Monday, July 29, 2013
Posted by D. Daniel Sokol
Douglas H. Ginsburg, George Mason University School of Law and Joshua D. Wright, George Mason University School of Law describe Antitrust Courts: Specialists Versus Generalists.
ABSTRACT: In the last several decades, scores of new competition laws have been adopted and National Competition Authorities ("NCAs") established around the world. No matter what the arrangement for initial review of the NCA decision or review of a trial court in a private action, there is always an upper level reviewing court of general jurisdiction, whether mandatory or discretionary. These tribunals vary significantly on a number of dimensions, including the degree of specialization as measured by the percentage of the court’s cases arising under the antitrust laws and the degree to which judges of a court have skills or training specific to antitrust. The proliferation of tribunals reviewing NCA decisions invites inquiry as to whether one degree or another of specialization provides more satisfactory results, however measured. In the absence of data sufficient to identify a relationship between specialization and performance, we evaluate the case for specialist versus generalist tribunals by reference to criteria that have been widely accepted in the legal and political science literature evaluating actual or proposed specialized courts, and applying those criteria — efficiency, expertise, and uniformly — to the particular context of antitrust cases. We make no recommendation for or against the use of specialist courts for antitrust cases where they do not already exist. Our point is the more modest one that the objections commonly raised against specialist tribunals, at least as applied to antitrust cases, are not daunting, much less insurmountable. Whether all antitrust cases — or perhaps only cases seeking review of a decision of an NCA — should be singled out for resolution by a specialist court depends, therefore, entirely upon the claim that the economic evidence in such cases would be better understood and analyzed by judges who deal repeatedly with cases of the same ilk.