Law Commons^™

Standard Oil And U.S. Steel: Predation And Collusion In The Law Of Monopolization And Mergers, William H. Page

William H. Page

The Supreme Court’s 1911 decision in Standard Oil gave us embryonic versions of two foundational standards of liability under the Sherman Act: the rule of reason under Section 1 and the monopoly power/exclusionary conduct test under Section 2. But a case filed later in 1911, United States v. United States Steel Corporation, shaped the understanding of Standard Oil’s standards of liability for decades. U.S. Steel, eventually decided by the Supreme Court in 1920, upheld the 1901 merger that created "the Corporation," as U.S. Steel was known. The majority found that the efforts of the Corporation and its rivals to control …

Communication And Concerted Action, William H. Page

William H. Page

It is a familiar scenario in U.S. antitrust litigation: The plaintiffs allege that a pattern of identical pricing (or refusals to deal) is "concerted" and therefore per se illegal; the defendant responds that the practice is merely "consciously parallel" or "interdependent" and therefore legal. Under U.S. law, to avoid summary judgment or judgment as a matter of law, a plaintiff must produce a "plus factor," evidence that "tends to exclude the possibility" that the defendants' actions were merely interdependent. Courts have identified various plus factors -- for example, evidence that the alleged conduct was against the defendant's interest unless it …

Workable Antitrust Remedies, William H. Page

William H. Page

Just over twenty years ago, Frank Easterbrook proposed renaming the Chicago School of antitrust analysis the “Workable Antitrust Policy School,” in recognition of its skepticism about “the ability of courts to make things better even with the best data.” Richard Epstein's brief study of consent decrees is in this tradition of circumspection in antitrust matters. Epstein proposes to analyze “the role consent decrees play in the antitrust law” by examining “the factual and legal disputes that gave rise” to various decrees. He finds many decrees of the past century misguided in their ambition, but concludes, on the evidence of the …

The Gary Dinners And The Meaning Of Concerted Action, William H. Page

William H. Page

Between 1907 and 1911, executives of American steel manufacturers gathered in a series of social events and meetings that became known as the Gary dinners. Their founder, Judge Elbert H. Gary, chairman of the board of the United States Steel Corporation (U.S. Steel), believed the dinners were a lawful way to stabilize steel prices by enabling manufacturers to tell each other "frankly and freely what they were doing, how much business they were doing, what prices they were charging, how much wages they were paying their men, and... all information concerning their business." The government agreed that the dinners stabilized …

Bargaining In The Shadow Of The European Microsoft Decision: The Microsoft-Samba Protocol License, William H. Page, Seldon J. Childers

William H. Page

The Microsoft-Samba agreement is by far the most important tangible outcome of the European Microsoft case. The EC’s other remedial order in the case, which required Microsoft to create a version of Windows without Windows Media Player, was an embarrassing failure. The Samba agreement, however, is significant because it requires Microsoft to provide, to its most important rival in the server market, detailed documentation of its communications protocols, under terms that allow use of the information in open source development and distribution. There is good reason to believe that Samba will be able to use the information to compete more …

Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement, William H. Page, Seldon J. Childers

William H. Page

An important provision in each of the final judgments in the government's Microsoft antitrust case requires Microsoft to "make available" to software developers the communications protocols that Windows client operating systems use to interoperate "natively" (that is, without adding software) with Microsoft server operating systems in corporate networks or over the Internet. The short-term goal of the provision is to allow developers, as licensees of the protocols, to write applications for non-Microsoft server operating systems that interoperate with Windows client computers in the same ways that applications written for Microsoft's server operating systems interoperate with Windows clients. The long-term goal …

State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page

William H. Page

Antitrust observers are familiar with the two-part Midcal test for the immunity of state regulation from federal antitrust laws: the state must clearly articulate its policy to displace competition and must "actively supervise" any private conduct pursuant to the policy. But state action need not meet these requirements if it is "unilateral" and therefore does not conflict with Section 1. Only if a state-authorized restraint is "hybrid," combining state and private action in a way that resembles aprohibited agreement, need the restraint satisfy Midcal. In this article, John Lopatka and Bill Page examine the history andcurrent importance of the distinction …

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

William H. Page

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 …

Thurman Arnold's International Antitrust Legacy, William H. Page

William H. Page

In the decades before the World War II, a new economic philosophy favoring cooperation among competitors challenged the competitive model embodied in the antitrust laws. In the United States, the cooperative model had some successes in, for example, the Webb Pomerene Act of 1918, the associational activities of the 1920s, and the NRA codes of the 1930s. And, of course, antitrust law itself, after some false starts, came to recognize that some forms of cooperation are necessary for efficient production. Outside the United States, however, especially in the economic turbulence following World War I, policymakers adopted such an extreme form …

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

William H. Page

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 …

Monopolization, Innovation, And Consumer Welfare, John Lopatka, William Page

William H. Page

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, …