Aaron Edlin, Rebecca Haw, Andrew Gavil, and Harry First will receive the Jerry S. Cohen Award for Antitrust Scholarship at the American Antitrust Institute's Annual Conference on June 18. The Jerry S. Cohen Award for Antitrust Scholarship was created through a trust established in honor of the late Jerry S. Cohen, an outstanding trial lawyer and antitrust writer. It is administered by the law firm he founded, Cohen Milstein Sellers & Toll. The award is given each year to the best antitrust writing during the prior year that is consistent with the following standards established by the Board of Trustees of the Jerry S. Cohen Memorial Fund.
In the article “Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?” 162 U. Pa. L. Rev. 1093 (2014), Aaron Edlin and Rebecca Haw contend that the state action doctrine should not prevent antitrust suits against state licensing boards that are composed of private competitors deputized to regulate their own competition and to outright exclude those who compete with them, often with the threat of criminal sanction. At most, state action should immunize licensing boards from the per se rule and require plaintiffs to prove their case under the rule of reason. We argue that the Fourth Circuit’s recent case upholding an FTC antitrust suit against a licensing board — creating a circuit split and becoming the only circuit to deny state action immunity to a licensing board — is a step in the right direction but not far enough. The Supreme Court should take the split as an opportunity to clarify that when competitors hold the reins to their own competition, they must answer to Senator Sherman.
In the book The Microsoft Antitrust Cases: Competition Policy for the Twenty-First Century, Andrew Gavil and Harry First offer a comprehensive account of the multiple antitrust actions against Microsoft--from beginning to end—and an assessment of the effectiveness of antitrust law in the twenty-first century. Gavil and First describe in detail the cases that the Department of Justice and the states initiated in 1998, accusing Microsoft of obstructing browser competition and perpetuating its Windows monopoly. They cover the private litigation that followed, and the European Commission cases decided in 2004 and 2009. They also consider broader issues of competition policy in the age of globalization, addressing the adequacy of today’s antitrust laws, their enforcement by multiple parties around the world, and the difficulty of obtaining effective remedies—all lessons learned from the Microsoft cases.
For the first time, the award selection committee has conferred three category awards, as follows:
- Best Economics Article of 2014: John Asker and Heski Bar-Isaac, "Raising Retailers’ Profits: On Vertical Practices and the Exclusion of Rivals," 104(2) Amer. Econ. Rev. 672 (2014).
- Best Vertical Restraints Article of 2014: Margaret Levenstein and Valerie Suslow, "How Do Cartels Use Vertical Restraints? Reflections on Bork’s The Antitrust Paradox," 57 J. Law & Econ. S33 (2014).
- Best Section 2 Article of 2014: Stephen Maurer and Suzanne Scotchmer, "The Essential Facilities Doctrine: The Lost Message of Terminal Railroad," 5 Calif. L. Rev. Circuit 287 (2014).
To be considered eligible and selected for the Award, submissions should reflect a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Submissions should reflect an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society--values and concerns Jerry S. Cohen dedicated his life and work to fostering. Submissions may address substantive, procedural or evidentiary matters that reflect these values and concerns.
The award selection committee this year consisted of Warren Grimes, Robert Lande, Jack Kirkwood, Roger Noll, Christopher Leslie, Zachary Caplan, Roberta Liebenberg, and Daniel Small.