Rudolph J. R. Peritz

Professor of Law

Rudolph J. R. Peritz

An expert on antitrust law, Rudolph J.R. Peritz focuses his scholarship on the historical and legal relationships between competition policy and private property rights.

Professor Peritz started his career working with computers. After law school at the University of Texas (J.D. 1975, Order of the Coif ) and three years of private practice at Hirsch & Westheimer in Houston, he was hired as assistant attorney general of Texas, because they were looking for an attorney with a computer background. He spent the next three years working in the Antitrust Division as director of the Computer-Assisted Enforcement Project.

Professor Peritz began working with computers during his high school years. After college he worked as a systems analyst at RCA, and then for the Pittsburgh, Pennsylvania Board of Education.

In 1977, Professor Peritz was asked to develop a seminar on computers and the law for the University of Texas. One of the first in the country, the seminar dealt with how such basic areas of law as intellectual property, copyright, criminal law, and negligence applied to the computer industry. The experience, he recalls, made him fall in love with teaching.

After a year as a Langdell Fellow at Harvard (1981–82), where, in addition to his own research, he worked on developing a computerized legal expert system for Legal Aid, Professor Peritz spent four years as associate professor at Rutgers Law School. In 1986, after a year at Benjamin N. Cardozo School of Law, he joined the New York Law School faculty.

In 1986, Professor Peritz published a law review article, still frequently cited, on the admissibility of computerized business records as evidence in federal court. Although the federal laws of evidence have not changed, Professor Peritz’s point of view—that computer records are more subject to error and fraud and therefore should not be admissible under the same standards as conventional records—has been espoused by a number of states.

His interest began to move toward antitrust scholarship with a 1989 article examining the tension between competition and private property rights. Professor Peritz was one of the first legal scholars to look at the issue.

In 1990, Professor Peritz was invited to give a paper at Duke University’s annual Frontiers of Legal Thought symposium, the genesis of his critically-acclaimed book, Competition Policy in America: 1888–1992 (Oxford University Press, 1996, revised 2001). It traces the public discourse of free competition and the underlying tension between its two different visions—freedom not only from oppressive government, but also from private economic power.

In 2001, as senior research scholar at the American Antitrust Institute in Washington, D.C., he was involved in several major education and research projects. His casebook, U.S. Antitrust Law in Global Perspective (second edition, West Publishing, 2004), written with Eleanor Fox and Lawrence Sullivan, has just been published.

Over the past several years, as an outgrowth of a sabbatical semester in 2000 spent as a visiting professor at the University of Essex in England, he has also been instrumental in developing relationships with foreign law schools that will allow exchanges of both students and professors.

In 2005, Professor Peritz launched his IProgress Project, a new “do tank” affiliated with the Law School’s Institute for Information Law and Policy. The Project aims to promote progress and innovation in the public interest. Its goal is improving intellectual property law and policy through research initiatives focused on law and regulatory reform, software innovation, and legal education.

BOOKS

Cases and Materials on U.S. Antitrust in Global Context. 2nd ed. (Thomson West, 2004) (with E. Fox & L. Sullivan).

Teacher’s Manual to Accompany Cases and Materials on U.S. Antitrust in Global Context. 2nd ed. (Thomson West, 2004) (with E. Fox& L. Sullivan).

Competition Policy in America: History, Rhetoric, Law. (Oxford University Press, 1996; revised edition, 2001). Occasioned “Symposium: Provocations and Reflections upon Competition Policy in America,” 42 Antitrust Bulletin 239–456 (1997).

CHAPTERS IN BOOKS

“The Life and Times of Dr. Miles Medical Company,” in Antitrust Stories (E. Fox & D. Crane, eds., West Publishing, forthcoming 2007).

“The Impact of Antitrust Law on Intellectual Property Rights in the United States,” in The Competition—Intellectual Property Interface: A Comparative Perspective (S.J. Anderman, ed., Cambridge University Press, 2006).

“Tipping,” Chapter in Network Access, Regulation and Antitrust, at 28-34 (D.Moss, ed.)(Routledge, 2005).

“Tipping and Network Effects,” in Network Access: Lessons Learned in Regulations and Antitrust (D. Moss, ed., Routledge Press, 2004).

“Dynamic Efficiency and U.S. Antitrust Policy,” Chapter 6 in Post-Chicago Developments in Antitrust Law at 108–128 (A. Cucinotta, R. Pardoles & R. Van den Burgh, eds., Edward Elgar Publishing, 2002).

“The ‘Rule of Reason’ in Antitrust Law: Property Logic in Restraint of Competition,” Chapter 12 in Competition Law at 303–360 (R. Greaves, ed., Ashgate, 2003) reprint of 40 Hastings Law Journal 285–342 (1989).

LAW REVIEW AND OTHER SCHOLARLY PUBLICATIONS

“Doctrinal Cross-Dressing in Derivative Aftermarkets: Kodak, Xerox and the Copycat Game” (American Antitrust Institute Symposium on Complexity Theory and its Application to Antitrust), 51 Antitrust Bulletin 287 (2006).

“Re-Thinking U.S. v. Microsoft in Light of the E.C. Case,” NYLS Legal Studies Research Paper No. 04/05-4 (2004). < http://ssrn.com/abstract=571803>.

“Toward a Dynamic Antitrust Analysis of Strategic Market Behavior” (Antitrust: Stretching the Envelope: Third Annual Symposium of the American Antitrust Institute), 47 New York Law School Law Review 101–118 (2003).

“Antitrust Policy and Aggressive Business Strategy: A Historical Perspective on Understanding Commercial Purposes and Effects” (Research Workshop and Conference on Marketing, Competitive Conduct and Antitrust Policy), 21 Journal of Public Policy & Marketing 237–242 (2002).

“Introductory Remarks, An Analytical Framework for Thinking About Economic Justice” (Special Issue: Reflecting on the Legal Issues of Our Times. New York Law School Faculty Presentation Day), 46 New York Law School Law Review 731–734 (2002–2003).

“Theory and Fact in Antitrust Doctrine: Summary Judgment Standards, Single-Brand Aftermarkets, and the Clash of Microeconomic Models,” 45 Antitrust Bulletin 887–920 (2000).

“Il Prodotto de Marca e il Suo Mercato Derivato. Analisi Economica e Inquadramento Giuridico,” 2 Mercato, Concorrenza, Regole 195–221 (1999).

Essay, “Some Realism About Economic Power in a Time of Sectorial Change,” 66 Antitrust Law Journal 247–272 (1997).

Review Essay, “History as an Explanation: Annals of American Political Economy,” 22 Law & Social Inquiry 231–264 (1997).

“Politics at the Margin: Some Thoughts on the Centrality of ‘and’ in ‘Director and Levi,’ ‘Law and the Future: Trade Regulation(1956)’ (Symposium: The Past and Future of Antitrust: Reconsiderations of Director and Levi’s Law and the Future After Forty Years), 17 Mississippi College Law Review 106–112 (1996).

“Three Visions of Managed Competition, 1920–1950” (Symposium: An Antitrust Revival? Constructing Policies and Goals for a Revitalized Economy), 39 Antitrust Bulletin 273–288 (1994).

“The AT&T-McCaw Merger: Lessons from History and Cautions from Economic Theory,” Media Law & Policy (1994).

“Foreword, Antitrust as Public Interest Law” (Symposium: The Past and Future of Antitrust as Public Interest Law), 35 New York Law School Law Review 767–790 (1991).

Symposium Editor,“The Past and Future of Antitrust as Public Interest Law,” 35 New York Law School Law Review 767–1119 (1991).

“A Counter-History of Antitrust Law” (Symposium: Frontiers of Legal Thought), 1990 Duke Law Journal 263–320.

“A Genealogy of Vertical Restraints Doctrine,” 40 Hastings Law Journal 511–576 (1989).

“The ‘Rule of Reason’ in Antitrust Law: Property Logic in Restraint of Competition,” 40 Hastings Law Journal 285–342 (1989). Excerpted in The Political Economy of the Sherman Act: The First Hundred Years 116 (E.T. Sullivan, ed., Oxford University Press, 1990), reprinted in Competition Law (R. Graves, ed., Dartmouth Publishing Co., 2003), reprinted in Competition Law (Ashgate Publishing, 2004).

“Computer Data and Reliability: A Call for Authentication of Business Records Under the Federal Rules of Evidence,” 80 Northwestern University Law Review 956–1002 (1986). Reprinted in 7 Computer Law/Journal 23–72 (1986).

“The Predicament of Antitrust Jurisprudence: Economics and the Monopolization of Price Discrimination Argument,” 1984 Duke Law Journal 1205–1295.

NEWSPAPER ARTICLES, PRACTICE MATERIALS, AND OTHER PUBLICATIONS

“The Sherman Anti-Trust Law: Enacting A Charter of Economic Liberty,” in Historians on America (Bureau of International Information Programs, U.S. Department of State, forthcoming 2007).

“Doctrinal Cross-Dressing in Derivative Aftermarkets: Kodak, Xerox and the Copycat Game,” 51 The Anti-Trust Bulletin 215-226 (2006).

Comments of American Antitrust Institute Working Group on the New Economy (July, 2005) http://www.antitrustinstitute.org

“Antitrust and the New Economy: Comments to the Antitrust Modernization Commission, Washington, D.C.,” (Author, Editor, and Chair, Working Group on the New Economy, American Antitrust Institute) (July 2005) < www.amc.gov >.

“The Decline of the Public Benefit in Copyrights and Patents,” FTC Watch January 12, 2004 at 5–6.

“Competition Policy and its Implications for Intellectual Property Rights in the United States,” in The Intellectual Property/Competition Interface Project (IP Institute of the Republic of Singapore, 2004).

“The Right Remedy: Split Up Microsoft,” Los Angeles Times (Op Ed) April 7, 2000, at B9. Reprinted in Sun-Sentinel (Ft. Lauderdale, FL), at 21A (April 17, 2000).

“Why Microsoft Can Survive,” 22 National Law Journal (Op Ed) at A23 (January 24, 2000).

“Exploring the Limits of Formalism: Artificial Intelligence and Legal Pedagogy,” 1 Law Technology Journal 20 (British and Irish Legal Education Technology Association, U.K. Law Technology Centre, University of Warwick, Coventry, U.K., 1991).

“Expert Systems and Legal Reasoning: An Essay on the New Formalism, in Proceedings of the 4th International Conference on Computers and Law,” Judicial Department, Federal Government of Italy, 1988.

Posted Working Papers

“Patents and Competition: Toward a Knowledge Theory of Progress,” presented at AALS Workshop on Intellectual Property Rights, June 14, 2006, Vancouver, B.C.; at 2006 ATRIP Congress: Intellectual Property and Market Power, September 4, 2006, Parma, Italy; < http://www.aals.org/documents/2006intprop/PeritzPaper.pdf >, and
< http://www.law.berkeley.edu/institutes/bclt/ipsc/papers2/peritz.doc > (IP Scholars Conference, August 2006).

“Re-Thinking U.S. v. Microsoft in Light of the E.C. Case,” Seminar: The Microsoft Case in Comparative Perspective, presented March 22, 2004, at Law & Economics Lab, LUISS (Giuliano Amato, moderator)
< http://papers.ssrn.com/paper.taf?abstract_id=571803>.

“Re-Thinking U.S. Antitrust and Intellectual Property Rights,” keynote address Conference on Intellectual Property and Antitrust Law in the Information Technology Business, November 12, 2004, at LUISS University, Rome, Italy, < http://ssrn.com/abstract=719745>; Sienna Seminars on Law and Economics, June 17, 2005, Faculty of Economics, University of Siena, Italy.

Selected Works in Progress

The Political Economy of Progress (book in progress).

“Antitrust Jurisprudence under Chief Justice Roberts”

“Intellectual Property as Redemption: Equity and Entitlement”

Competition/IP Intersections in Global Context (collection of essays, with S.D. Anderman, University of Essex).

Perspectives on Intellectual Property Rights: Internal and External Competition Policies (collection of essays, with S.D. Anderman, University of Essex).