As a practical matter, antitrust laws are not invoked unless the monopolistic company crosses a line between monopoly through sheer efficiency and monopoly through using methods intended to monopolize, strong-arm tactics like price-fixing and market allocation. Microsoft is a very good example. Nobody really minded that MS-DOS and later, Windows, were effectively monopolies. Bill Gates was welcome to 80-90% of market share because the product was useful. Even if Windows had 100% of the market just by being better than anyone else, that would have been OK.
It was when he started trying to take 95-99% of market share using methods other than sheer efficiency, other than just being better than anyone else, that people got P.O.'d. Stuff like telling OEMs that they must ship the product with Windows or else pay a license fee anyway, or else Microsoft would not sell them Windows, period, is just bad form. The definition for that kind of tactic is market allocation. There's no reason to do that unless you want to drive competitors out of business, otherwise it doesn't make economic sense to refuse to sell your product to a willing and able buyer unless he quits selling competitive products. There's no reasonable justification for that type of activity.
Richard Posner, the 7th Circuit Court of Appeals judge who was appointed to act as mediator in the Microsoft case, is a founding member of the Federalist Society and teaches at the University Chicago about the nexus of law and economics from a free market perspective. He believes that the government should not get involved in economic activities unless there is a sound reason.
You may have noticed that Judge Jackson delayed ruling until after Judge Posner gave up the mediation attempt as "fruitless" after four months. What you probably don't know is that Jackson appointed Posner because he respects Posner's free market perspective. Professor Lessig, who served as a Special Master for Jackson in the 1997 case against Microsoft, was one of Posner's law clerks. Jackson asked Lessig to serve as Special Master because he understands antitrust law, a very arcane subject - and Lessig also has a free market perspective. Even though Lessig was removed from the case, Jackson allowed him to file an Amicus Curiae brief.
Price fixing, bid rigging, market allocation and the like don't do anyone any good except those in collusion. If a company is better than anyone else, more productive, more efficient, produces a better product, why do they have to engage in strong-arm tactics? It's the mirror image of bribery, and antithetical to free markets.
I suppose you can come up with a free market justification of bribery, too? |
