A critical moment for antitrust law

May 11, 2009
By

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Several sources reported this morning that the head of the Justice Department’s antitrust division under the Obama administration, Christine A. Varney, plans to toughen up on monopolistic and predatory business practices—especially by large enterprises attempting to exploit the weakened positions of smaller companies struggling through the current recession. A Bloomberg article quotes Varney suggesting that “a more vigorous antitrust policy in the financial markets may have helped avert the current economic crisis: ‘Is too big to fail,” she asks, “‘a failure of antitrust?'”
According to the New York Times Varney’s plans would restore the same sort of Clinton-era antitrust policy that led to the landmark antitrust lawsuits against Microsoft and Intel in the 1990s, and which has since sparked heated debate in Washington about how best to foster a healthy economy that functions in the interests of consumers. Making an important contribution to that debate, William H. Page and John E. Lopatka’s 2007 book The Microsoft Case: Antitrust, High Technology, and Consumer Welfare offers the contrarian argument that consumers are, in fact, rarely served by antitrust intervention. Both the government and the courts, Page and Lopatka contend, were unduly influenced by the harms that Microsoft’s practices would have on its rivals—though they did not harm consumers and may even have benefited them. Highlighting critical points during the Microsoft litigation where they say the system failed consumers by overrating government’s ability to influence outcomes in a dynamic market, theirs remains one of the most essential books on the topic.
You can read more about the Obama administration’s planned shift in antitrust policy at the NYT website or find our more about Page and Lopatka’s The Microsoft Case.
Also of interest from the press: Antitrust Law, Second Edition, by Richard A. Posner—an influential critique of antitrust law from the perspective of law and economics.

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