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June 02, 2011


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Saurabh Vishnubhakat

To stay with the market regulation example for a moment... I think the U.S.-Australia-Europe comparison of labels is spot on, and can map similarly onto institutions within a single legal system. Here in the U.S., for example, the general encouragement of trade and promotion of competition are the purview of the Federal *Trade* Commission and its Bureau of *Competition*. By comparison, the policing of specific criminal acts rests with the *Antitrust* Division of the DOJ.

Indeed, one might compare (1) the American progression from the DOJ historically prosecuting specific antitrust violations to the FTC now generally promoting competition, to (2) the international progression from industrial-age American antitrust policy to postwar European competition policy.

Jarod Bona

Fantastic question! There is no current significance to the label "antitrust" attorney in the United States relative to the term "competition" attorney in Europe and the rest of the world. The reason US lawyers call themselves antitrust attorneys is because the first Anti-Trust acts were passed in reaction to the powerful "Trusts." For some reason, the term stuck.

I have always been of the view that US antitrust lawyers should call themselves competition lawyers, and actually proposed that at my firm. But that didn't get very far. I guess I have conceded because I use the term "antitrust" on my bio (which I will consider changing).

I prefer to think of myself as a protector of "Competition" rather than a hater of "Trusts." And, since I usually represent defendants in litigation, we often argue that the actions at issue were "pro-competitive."

I discuss the issue a bit in this article.

Orin Kerr

I don't think the labels matter very much, if at all. The terms of legal fields tend to be terms of art, so which term of art is chosen doesn't have much if any significance.

Unworthy Conversant

I hesitate to disagree with a luminary of Professor Kerr's stature, but I think the terms chosen have a great amount of significance. As another luminary told me in a private discussion: "We cast ideas into words in a strange process of transition from inchoate thought into specific form that will alter later thoughts. Change the forms allowed, and you change the thoughts allowed." This holds true not only for the shape of a law as expressed by its linguistic foundation (wherever found - be it statute or case); this holds true as well for field labels.

Mr. Bona seems to be arguing that, as a practical matter, competition lawyers in the EU do what antitrust lawyers do in the US. The point is very well taken; but I fear that if this is his basis for answering "No" to the original question of the post, then perhaps he has missed the subtle point being addressed by Dean Lipton's question.

Mr. Vishnubhakat's article suggestion is attractive; were I not already in the process of writing three others, I might take a meager stab at it. Fortunately, my preoccupations will allow much greater lights than this poor lamp to illuminate his topic.

Jacqui Lipton

Thanks for all these comments. I wonder if antitrust law is an anomaly anyway and that most other fields share the same labels across jurisdictions. The subject matter may vary a little between jurisdictions (eg restitution, estoppel), but the labels may be fairly standard outside of antitrust.

Jarod Bona

I did not mean to suggest that competition law in the EU is, as a practical matter, identical to antitrust law in the US. In fact, there are substantial differences, not only in the law, but in the culture of how competition/antitrust law is enforced. But that difference does not--as far as I can tell--have anything to do with the fact that the term "antitrust" is used in the US and "competition" is used in Europe.

I do, however, prefer the term "competition" because it more accurately reflects the area of practice for both US and European lawyers. And I think that is important because it makes clear that the purpose of the law is to protect competition rather than just prohibiting antitrust violations. It is not always clear what is an antitrust violation, and sometimes enforcing the antitrust laws in a certain way will itself harm competition. So those attorneys that are defending against antitrust allegations can protect competition by demonstrating to the court that the challenged actions are pro-competitive and prosecuting them will harm competition (both in the present and in future cases).

Stephanie Farrior

I see this interesting comparison each year when we translate the course names for our registrar from the transcripts of Vermont Law students enrolled in our dual degree program (JD/MasterII-DJCE) with the University of Cergy-Pontoise near Paris:

US: Bankruptcy
French: Enterprises en Difficulté

Orin Kerr


Can you give me examples of what you have in mind -- instances in which the labels chosen for a field of law had a "great" influenced on the direction of the field? I gather you have a few examples in mind, so I'm curious about what they are.

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