Ken Elzinga is the Robert C Taylor professor of economics at the University of Virginia (UVA). He has provided expert testimony for the prevailing parties in three US Supreme Court cases: Matsushita v Zenith; Brooke Group v Brown & Williamson; and Leegin Creative Leather Products v PSKS Inc. Professor Elzinga is a legendary teacher who has taught more than 47,000 students. In 2017, UVA named an endowed chair in honour of his distinguished, award-winning career.
What do you enjoy about your role as a competition economist?
I am continually struck by the power of the basic principles of economic theory, and how they can be used to illuminate and solve real-world problems. I was first attracted to the application of economics to competition economics by Walter Adams, one of my graduate school professors who was a “larger than life” professor.
How does your experience as a teacher enhance your work in private practice?
To some extent, I consider consulting to be like teaching. You need to get the economic analysis right, but that’s of little value if you don’t communicate it – or teach it – in a way that is understandable and compelling to your audience, whether that is a student, a judge or a member of the jury.
For example, recently I was the economic witness for defendants in an antitrust class action that went before a jury. The case was brought by a class of Midwest retail grocers who alleged that an asset exchange between two wholesalers was part of a collusive scheme to allocate the market between two geographic areas. Some retail grocers took the position that an exchange allowing each wholesaler to consolidate its operations more intensively in a given geographic area must have reduced competition between the wholesalers.
In this case, I analysed the economic evidence, including how the asset exchange affected costs, prices and competition. I found clear evidence that the asset exchange did not harm competition, but rather benefited consumers. At trial I had to explain this detailed economic evidence in a way that was understandable and compelling to the jury. In particular, I had to explain why big is not always bad, and why fewer competitors can sometimes mean better outcomes for consumers. At the end of the trial, after less than two hours of deliberation, the jury returned with a unanimous verdict in favour of the defendants. It was gratifying to realise that my research and teaching allowed the jury to understand the economic reality of the issue in front of them, and to come to what I believe was a proper verdict about something important for these two businesses, for competition, and for consumers.
What is the most memorable case you have been a part of?
For me there are three – all important US Supreme Court cases. I was the economic expert (on the prevailing side) in Matsushita, Brooke Group and Leegin. Each of those cases brought antitrust law more in line with what most economists would consider good public policy. I am proud to have been a part of that. If I had to pick one of the three, it would be Leegin because of the relationship I had with the founder of the company who was dedicated to winning the case, against all odds of it happening.
What are the biggest changes you have observed in the development of expert testimony and cross-examination over your career?
Two of the most interesting changes I have observed go hand in hand. The first is the increased embrace and application of economic analysis by the courts. The second is the escalation of resources that now go into antitrust economics. For example, it is now common for an antitrust case to have more than one expert on each side. And in these cases, economic experts are more extensively supported by talented colleagues and staff than before. As a consequence, the intellectual content of reports and testimony is greater.
You co-authored a paper, “Geographic Market Definition in the Merger Guidelines”, on the 50th anniversary of the Horizontal Merger Guidelines. In your opinion, what is the main takeaway?
One can look at the Merger Guidelines as a chronicle of how merger enforcement has changed over the past 50 years. To understand contemporary horizontal merger enforcement, it is fruitful to look back and see how we arrived at the current enforcement landscape. The initial 1968 version of the Guidelines represented a significant change in the administration of antitrust. Beginning in 1982, and in all subsequent versions, the Guidelines reflect the influence of economics on the execution of merger enforcement.
Changes in the Guidelines over time represent the DOJ and the FTC’s responses to advances in economics, as well as changes in data availability and data analysis. And, because they are grounded in economics, the Guidelines now carry influence beyond the evaluation of mergers and acquisitions.