Law Commons^™

Internet Regulation And Consumer Welfare: Innovation, Speculation, And Cable Bundling, John E. Lopatka, William H. Page

UF Law Faculty Publications

The goal of telecommunications policy has shifted from the control of natural monopoly to the promotion of competition. But the question remains how extensive and persistent the government's regulatory role should be in the operation of communications markets. One might think that regulators could find the answer to this question in antitrust law. But antitrust has itself been torn between interventionist and laissez-faire tendencies. Over the past two decades, the dominant Chicago School approach to antitrust has focused on economic efficiency, a standard that has led to the abandonment or contraction of some categories of liability. More recently, however, post-Chicago …

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 …

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 …