Over the past five years, there have been 417 self-reported new US law professor hires. Over those five years, only seven candidates have reported an interest in antitrust. At a generational moment when antitrust has become an urgent political issue, why is there such little interest in it in law school hiring?
For the last several years, I have been Tweeting annually about the paucity of new US law professor hires interested in antitrust. My data are pulled from the annual self-reported spreadsheet compiled by Northwestern Professor Sarah Lawsky (you can find the 2021 spreadsheet here). Prof. Lawsky’s spreadsheet allows each new hire to report up to four research interests, and most report at least three. That renders a total number of slots for reported interest in a field; antitrust is what interests me.
Over the past five years, there have been 417 self-reported new hires, and therefore 1,668 slots in which to report a research interest. Over those five years, only seven candidates have reported an interest in antitrust—that’s seven out of 1,668 slots. Only two—Erik Hovenkamp (USC) and Sam Weinstein (Cardozo) have named antitrust as their primary research interest.
A couple of qualifications on the data before getting into analysis: While these data probably capture most new law hires, they are self-reported, and therefore not entirely complete. At least one high-profile entry-level candidate, Lina Khan, who was hired by Columbia (and has now been nominated to the FTC), doesn’t show up on the list. Also, as Pallavi Guniganti observed on Twitter, some more senior scholars who hadn’t previously taken as much of an interest in antitrust may be shifting in that direction—take, for example, Columbia Professor Tim Wu who has become increasingly involved in antitrust in the last few years and is now working on competition policy in the White House for the National Economic Council.
I’d be curious to look back & see how many of the prominent current antitrust scholars reported it as one of their research interests when first hired. Eg when I was in law school 15+ years ago, Tim Wu was not teaching antitrust; everyone knew him for IP, telecoms, tech.— Pallavi Guniganti (@PGunigantiAT) May 11, 2021
Despite these qualifications, the data prompt an obvious question: At a generational moment when antitrust has become an urgent political issue, why is there such little interest in it in law school hiring? Is it the candidates, the schools, or both? And what does it mean for antitrust reform?
Let me offer a few loose hypotheses. The first is that academic thought can either lead or follow, and in the case of antitrust, it’s clearly following. With the notable exception of Lina Khan’s paper on Amazon, the movement for antitrust reform did not arise primarily from academic work—at least not academic work in law schools. It arose from grassroots discontent with the power of Big Tech and frustration at the perception that technocratic elites were ignoring growing consolidation in many sectors of the economy. Of course, there has long been a post-Chicago pushback against the Chicago School in academic work, but it has been relatively technical, modest, and—to most outsiders—boring. The politically salient movement to reform antitrust isn’t concerned about refinements to critical loss analysis or the discount attribution test, but about sprawling, cross-cutting ideas like democracy, speech, privacy, equality, freedom, opportunity, and power. The legal academy came late to that party.
Second, and relatedly, over the past several decades there has been a perception in the legal academy that antitrust is a dead field. When I went on the academic market about 20 years ago, a number of established professors expressed skepticism at my interest in antitrust on the grounds that there was nothing left to write about since antitrust wasn’t practiced anymore. In 2017, even Richard Posner quipped that “antitrust is dead!” That perception wasn’t ever correct. Antitrust might have gone underground, but there was always a good deal of work on merger review, cartel enforcement, government investigations, and private litigation. Also, antitrust has been exploding globally over the past several decades, a phenomenon that should be of interest to cosmopolitan law faculties. Still, perceptions live on long beyond their expiration date in the legal academy. I still hear stories about antitrust’s bygone golden years, when Phillip Areeda and Donald Turner packed classrooms with hundreds of students at Harvard.
Of course, the legal academy is probably beginning to wake up to the fact that, even if antitrust was once dead, it’s coming back to life. But that leads to my third observation: it takes a long time to build the academic pipeline. Students with an interest in academic need to be nurtured in a field, advised on a research agenda, and ushered into the teaching market. That is a multi-year process. The antitrust reform movement came of age only two or three years ago. So perhaps there is a pipeline of new scholars that will begin to emerge in a few years’ time.
These loose comments have focused on law schools and law school hiring. It’s my impression that there has been a growth of interest in antitrust in other segments of the academy, including economics, business, and history departments. Law schools don’t have to lead this charge, but it would be nice if they at least caught up.