Law Commons^™

Why Are We So Reluctant To "Execute" Microsoft?, Robert H. Lande

All Faculty Scholarship

On June 28, 2001, the D.C. Court of Appeals held that Microsoft has violated the antitrust laws repeatedly, relentlessly, and over a multi-year period. The court ruled eight separate times that Microsoft engaged in conduct that illegally maintained its monopoly in PC operating systems. Despite these strongly worded conclusions concerning Microsoft’s liability, the court was extremely cautious when it considered whether to break up the company. It held that divestiture was a “radical” remedy that should be imposed with “great caution.”

The Perfect Caper?: Private Damages And The Microsoft Case, Robert H. Lande, James Langenfeld

All Faculty Scholarship

As readers of crime novels know, there are many definitions of the perfect caper. Under most, the perpetrator gets to keep its ill-gotten gains and goes unpunished. Even if the perpetrator is arrested and brought to trial, he or she still typically escapes punishment completely due to a variety of unusual circumstances. This is essentially what Professors John E. Lopatka and William H. Page are arguing about Microsoft's actions. They assert that even though Microsoft has violated the antitrust laws, it will not be made to pay for its anticompetitive conduct, at least not by private plaintiffs.

Devising A Microsoft Remedy That Serves Consumers, John E. Lopatka, William H. Page

UF Law Faculty Publications

According to Judge Thomas Penfield Jackson, Microsoft was a “predacious” monopolizer that did extensive “violence . . . to the competitive process.” Through a “single, well-coordinated course” of anticompetitive action, it suppressed competition from Netscape's Navigator, an Internet browser, and from Sun's Java programming language and related technologies. Microsoft “mounted a deliberate assault upon entrepreneurial efforts, . . . placed an oppressive thumb on the scale of competitive fortune, . . . and trammeled the competitive process.” Having colorfully concluded that Microsoft's offenses were extreme, Judge Jackson deferred to the government's demand for a drastic remedy. He ordered that Microsoft …

Monopolization, Innovation, And Consumer Welfare, John E. Lopatka, William H. Page

UF Law Faculty Publications

While most commentators and the enforcement agencies voice support for the consumer welfare standard, substantial disagreement exists over when economic theory justifies a presumption of consumer injury. Virtually all would subscribe to the theoretical prediction that an effective cartel will likely inflict consumer injury by reducing output and thus increasing prices. But the academic and judicial consensus disappears when the theory at issue predicts that a practice -- a merger or a predatory pricing campaign, for example -- will harm consumers in the future through some complex sequence of events.

In our view, the desire to protect innovation is legitimate, …

The Ftc's Procedural Advantage In Discovering Concerted Action, William H. Page

UF Law Faculty Publications

Scholars have long argued that Section 5 of the Federal Trade Commission Act can or should be interpreted to reach more conduct than Section 1 of Sherman Act - whether, in other words, there are gaps in the coverage of Section 1 that allow certain forms of anticompetitive conduct that Section 5 should condemn. Perhaps the most important issue in the interpretation of Section 1 concerns how courts should distinguish conscious parallelism from unlawful concerted action. In this paper, I argue that there is no substantive gap between the two antitrust statutes on this issue-both statutes prohibit (and permit) the …

Antitrust And The Information Age: Section 2 Monopolization Analyses In The New Economy, A. Benjamin Spencer

Scholarly Articles

None available.

Resurrecting Incipiency: From Von's Grocery To Consumer Choice, Robert H. Lande

All Faculty Scholarship

The merger incipiency doctrine is virtually ignored in the courts today. This article argues that it should be resurrected, and it also explores the ways that effectuating Congressional intent in the area would reinvigorate merger policy.

The article documents how the legislative history of the antimerger statutes shows that Congress intended mergers to be evaluated under an incipiency approach, and explores the possible meanings of this idea. It then shows that this is a strong basis for reviving significantly stricter or more prophylactic merger enforcement.

The article shows how there are aspects of the doctrine that could be revived without …

Analysis Of Foreclosure In The Ec Guidelines On Vertical Restraints, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The antitrust treatment of vertical restraints is quite controversial. In the United States, for example, warring vertical restraints guidelines were issued by the Department of Justice and National Association of Attorneys General, a group of antitrust enforcers from the individual states. However, a consensus was never achieved and these guidelines never entered the mainstream. Compare them to the U.S. Horizontal Merger Guidelines, which have become a template for evaluation of horizontal restraints.

The new EC Guidelines on Vertical Restraints Guidelines ("GVRs") represent a significant effort to create and implement a consistent analytic framework for evaluating vertical restraints. The scope of …

Symposium: Antitrust At The Millennium (Part Ii), Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This issue features Part II of the Antitrust Law Journal's Symposium on Antitrust at the Millennium. As with Part I, which appeared in Volume 68, Issue 1 (2000), most Symposium authors use a decision or other significant text from antitrust's past as a springboard to discuss some aspect of antitrust's future. This group of Symposium essays is being published in the wake of a U.S. election that has shifted control of the Executive Branch of the federal government from Democrats to Republicans. Yet the broad themes and challenges pursed by Symposium authors are likely to remain central to antitrust regardless …

New Horizons In Cartel Detection, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Should Concentration Be Dropped From The Merger Guidelines?, Jonathan Baker, Steven Salop

Articles in Law Reviews & Other Academic Journals

As members of the ABA Antitrust Section's Task Force on Fundamental Theory, we are pleased to provide a briefdiscussion of the appropriate role of market concentration in the review of mergers under the antitrust laws. Thispaper, organized in four main parts, will offer some suggestions for revising the Department of Justice and FederalTrade Commission Horizontal Merger Guidelines. A final section of this work will analyze whether it would bepreferable to conduct merger analysis by applying Professor Michael E. Porter's business strategy framework ratherthan the Merger Guidelines.

Antitrust Intent, Keith N. Hylton, Ronald A. Cass

Faculty Scholarship

Many legal rules turn on a party's state of mind or intent with respect to some action or consequence. Legal scholars have long debated the contours of such requirements and the sorts of proof required for them. Intent has been an especially controversial issue in antitrust law. This paper provides a theory of legal standards that explains the role of intent analysis in antitrust and in other areas of the law. We argue that intent requirements, and many other legal rules, can be understood by focusing on the goal of minimizing the expected costs from legal errors. After developing a …

Who Suffered Antitrust Injury In The Microsoft Case?, John E. Lopatka, William H. Page

UF Law Faculty Publications

Most of the popular and scholarly discussions of Microsoft have focused on whether the defendant violated the law and, if so, whether the remedial order was appropriate. Never far from the surface in all of these discussions, however, has been the prospect of private antitrust suits that would inevitably follow a government victory. Indeed, numerous consumer class actions were filed against Microsoft in the wake of the District Court's issuance of its findings of fact. Should the District Court's decisions on liability stand, Microsoft can expect to face other suits by a variety of actors, including competitors, original equipment manufacturers …