Antitrust Brainstorming Board with Herbert Hovenkamp

Below, we have provided the full transcript of the interview with Prof. Herbert Hovenkamp, the James G. Dinan University Professor at the University of Pennsylvania Law School, recorded on September 8, 2021.

This interview was done as part of the Antitrust Brainstorming Board created by CPI with the support of the CCIA.

Thank you, Prof. Hovenkamp, for sharing your time for this interview with CPI.

A video of the complete interview is available HERE.

Do you think the current antitrust framework works for consumers?

Herbert HOVENKAMP:

I think a good deal of it works, but not everything. Consumers benefit from high output measured by both quantity and variety and innovation and low prices, and in some areas I think antitrust is quite effective at that, but not in others. I do believe that the rule of reason needs to be modified as it’s applied in the US. It’s been far too pro defendant. It was never intended to be that way. It was intended to permit a prima facie examination and then give the defendant once a prima facie case of competitive harm was met, the defendant should have an opportunity to defend and what the Supreme Court has done instead is loaded all the proof requirements into the initial part of the case. And as a result, the burden of proof never shifts to the defendant. That has made rule of reason cases very, very difficult to prove. Plaintiffs don’t win them very often.

And the result is that the rule of reason has become almost useless