Gorsuch seen as balanced antitrust professor who didn’t preach

By Claude Marx. Originally published on FTC:Watch February 17, 2017

While US Circuit Judge Neil Gorsuch has strong views on antitrust policy, he didn't use the classroom to impose them on his students.

Instead, the 49-year-old jurist President Donald Trump nominated to the US Supreme Court took a balanced approach and encouraged students to be thorough and civil.

Since 2012 Gorsuch has taught one course a semester — either antitrust or legal ethics — at the University of Colorado Law School and he's developed a reputation as a tough grader but one who takes a deep interest in his students' academic development.

"His courses require a lot of reading and rigorous analysis, so there was a lot of self-selection before students entered. But he mentored many students and really cared about them," professor Philip Weiser, who also teaches antitrust law at the school, said in an interview with FTC:WATCH. Weiser took over Gorsuch's course last month after Trump announced the nomination.

The judge bans computers in his classroom, as he thinks that they can be too distracting. His classes are fairly small (his antitrust class has 22 students) and very interactive.

Gorsuch, who has been on the Tenth Circuit since 2006 after being appointed by President George W. Bush, used the antitrust textbook coauthored by former FTC Chairman Robert Pitofsky, US Circuit Judge Diane Wood and the late Securities and Exchange Commission member Harvey Goldschmid. All the authors are Democrats and considered top scholars in the field. Weiser is replacing Goldschmid as the coauthor for the next edition of the book, Trade Regulation: Cases and Materials, and has changed Gorsuch's syllabus a little by adding chapters he has written so he can get student feedback.

John Francis, a scholar-in-residence at the law school who also teaches antitrust and describes himself as taking a more active enforcement view of antitrust than Gorsuch, told FTC:WATCH that the judge "encourages every point of view to be discussed."

When asked about Gorsuch's antitrust philosophy, Francis predicted that he will take an approach similar to that of the late Supreme Court Justice Antonin Scalia, whom Gorsuch would succeed on the high court. But Francis said Gorsuch presents his views in a less biting and acerbic manner than Scalia. Francis described his longtime colleague as "charming and personable."

In his most significant antitrust decision, the 2004 case Verizon v. Trinko, Scalia wrote for a 6-3 majority that firms that have lawfully acquired a dominant market position don't have to share their competitive advantage to promote competition.

Gorsuch, who said he cried when he heard about Scalia's death, cited the Trinko ruling when he wrote in the 2009 decision Four Corners Nephrology Associates v. Mercy Medical Center of Durango that Mercy didn't have to share facilities with Four Corners, a competitor.

"This isn't to suggest that it's always and metaphysically impossible to discern judicially administrable terms on which sharing might be mandated," Gorsuch wrote.

In 2013, in Novelli v. Microsoft, Gorsuch wrote for the court that rejected Novelli's contention that Microsoft violated antitrust laws when it stopped offering certain features of Windows 95.

"The antitrust laws don't turn private parties into bounty hunters entitled to a windfall anytime they can ferret out anticompetitive conduct lurking somewhere in the marketplace. To prevail, a private party must establish some link between the defendant's alleged anticompetitive conduct, on the one hand, and its injuries and the consumer's, on the other," he wrote.

In the same opinion, Gorsuch also discussed the limits of antitrust liability.

"Were intent to harm a competitor alone the marker of antitrust liability, the law would risk retarding consumer welfare by deterring vigorous competition — and wind up punishing only the guileless who haven't figured out not to write such things down despite (no doubt) the instructions they received in countless 'antitrust compliance' seminars. We fail to see any reason why the law should be more concerned about deterring the clumsy monopolist than the more sophisticated one," he wrote.

Before he became a judge, Gorsuch worked on several antitrust cases while in private practice. He represented Conwood Co., a moist snuff tobacco manufacturer, which successfully sued United States Tobacco Co. for antitrust violations and was awarded $350 million in damages, which was automatically trebled under law to more than $1 billion.

While conservatives have expressed pleasure with Gorsuch's appointment, justices can sometimes be unpredictable. Gorsuch clerked for two such justices — Byron White and Anthony Kennedy — who at times defied the ideological pigeonholes in which they are placed when they are first nominated.

White, a Coloradoan like Gorsuch, was appointed by President John Kennedy and often sided with conservatives, including dissenting in the landmark abortion rights case Roe v. Wade.

Anthony Kennedy, who was appointed by President Ronald Reagan, sided with the majority in upholding parts of the Affordable Care Act and in allowing gay marriage.

Francis said that despite his ideological disagreements with Gorsuch, based on the judge's decisions, personal demeanor and teaching style, he thinks Trump made a very good choice for the high court.

"He's a terrific and brilliant professor and reasonable, that's what you want on the court," he said.

The Senate Judiciary Committee has set Gorsuch's confirmation hearing for March 20.

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