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Harry Cassin
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Will there ever be a classic treatise on the FCPA?

A lot of regular and new readers enjoyed Joe Murphy’s post last week about the DOJ’s view of antitrust compliance. As we and DOJ officials have said before, there’s often an intersection between illegal cartel behavior and corrupt payments. So most compliance professionals are tuned in to both the FCPA and the Sherman Act.

Last month, Bill Baer, chief of the DOJ’s antitrust division, talked about the most famous competition law treatise, Antitrust Law. The primary author of the now 20-volume tome is Professor Herbert Hovenkamp from the University of Iowa College of Law.

At an event honoring Professor Hovenkamp’s works, Baer described what Antitrust Law means to defense lawyers, prosecutors, and judges. In other words, he talked about what it takes for a scholarly work to become a classic treatise — a rare status granted to just a few books, including Prosser’s Torts and Wright and Miller’s Federal Practice and Procedure.

Will there ever be a classic treatise on the FCPA? It’s hard to know. There are already some fine books about it that could be candidates. But unlike the Sherman Act — enacted by Congress with the intention that the courts would fill in many of the important details — the FCPA is a more complete statute that’s relatively clear on its face, and is rarely litigated. In such an area of law, can a scholarly work ever become a classic treatise?

We thought about that when listening to what Bill Baer had to say about Antitrust Law.

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Here are some of his remarks:

[Professor Hovenkamp’s] work often has particular resonance for the Antitrust Division, as it likely does for other enforcement agencies. Unlike those in private practice, we don’t answer to clients or work to advance the goals of any particular corporation or other commercial interest. Our mandate is to protect and preserve the competitive process for the benefit of American consumers. As an independent voice, whose scholarship is focused on how antitrust law can best advance consumer welfare, Herb’s analysis is often consistent with our own. And where it is not, it gives us reason and opportunity to reconsider the strength of our convictions. Like other litigants, the Division often cites to the Antitrust Law treatise and other of Professor Hovenkamp’s works as persuasive authority. To mention just a few recent examples, his analysis has been cited in briefs we filed in our civil conduct cases against Apple, eBay and American Express, as well as our merger challenges in U.S. v. Bazaarvoice and U.S. v. H&R Block.

And, like competition lawyers across the country, Antitrust Division attorneys often turn to Professor Hovenkamp’s writings to answer questions or to confirm our understanding of the law and related economic principles. It should not surprise you to learn that all of our attorneys have a link on their desktops to the Antitrust Law treatise. Where gaps in judicial precedent exist, Herb’s scholarship often validates our internal  analysis. For example, the Division has brought several cases against technology companies for agreeing not to “poach” each other’s employees. From the beginning, we saw these agreements as per se violations of Section 1 of the Sherman Act. But we found no cases squarely addressing this question in the employment context. Herb, however, had previously recognized this gap in the precedent and addressed it. As we quoted in a court filing last year, the Antitrust Law treatise characterizes such agreements as market allocation agreements that generally constitute per se violations outside the collective bargaining context. In recognizing and addressing this question proactively, Professor Hovenkamp exemplified the role of the practical scholar prized by Judge Edwards. . . .

In the early 1990’s, Judge Harry Edwards of the Court of Appeals for the District of Columbia wrote an article lamenting what he saw as a “growing disjunction” between legal scholarship and the practice of law. An exception, he noted, is the treatise, which he described as the paradigm of “practical” legal scholarship. The best treatises, he explained, “create an interpretive framework; categorize the mass of legal authorities in terms of this framework; interpret closely the various authoritative texts within each category; and thereby demonstrate for judges or practitioners what ‘the law’ requires.” Even then, more than twenty years ago, Judge Edwards recognized that Antitrust Law had already assumed its place, alongside Prosser’s Torts and Wright and Miller’s Federal Practice and Procedure, as one of the classic treatises of American law. . . . .

Like other great American legal treatises, Antitrust Law attained its authoritative status through consistency, accuracy, and careful reasoning. It has remained relevant through regular updates, which take into account both new legal precedents and evolving economic principles. For more than three decades, the treatise has helped antitrust lawyers and judges make sense of complex antitrust issues. It has thereby contributed significantly to the protection and preservation of competition in the United States.

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Bill Baer’s full remarks prepared for the University of Iowa Law Review centennial symposium honoring the work of Professor Herbert Hovenkamp in Iowa City, Iowa on October 23, 2014 are here (pdf).


Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.

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