Would you say there might have been cause for action no matter which school (as described) would get to make the decision?
I don't know, since I, like everyone else except perhaps Chairman Bill, do not know what the DOJ's case will be.
However, if past performance is any indication of what is to come, I would guess that Network Externalities will play a big part in the DOJ's case, with perhaps some Raising Rivals' Costs theory thrown in for good measure. After all, it's a Democratic Administration, eager to bring Antitrust law out of the shadow of Chicago. But we will just have to wait and see.
Regardless, I would expect the task of building a case against Microsoft to be much more difficult under the "evolutionary vision" world view than under the "intentional vision." I could be wrong, but I also am not persuaded that there exists right now enough of a consensus in favor of Network Externalities theory for it to fly in court. The picture may change in 10 years or so, when this case finally ends up before the Supreme Court, but, right now, I see reliance on this relatively new theory as risky.
I will also hazard the prediction that the principles of antitrust law which end up being applied to Microsoft will turn out to be straightforward and that the outcome will hinge on factual issues and the question of which of these two competing world views, evolutionary or intentional, as Page labels them, is perceived to be the more accurate description of reality. As Phillip Areeda, who wrote *the* treatise on Antitrust law said a long time ago,
Much of the dispute about [antitrust] is not about the relevance of economics or the importance of consumer welfare. The dispute is about our knowledge of reality: what are the facts and what theories best fit them.
. . . How does the law learn the truth about reality? . . . This is the most serious intellectual problem in antitrust law, and perhaps elsewhere as well: How can lawyers, the professors, or the judges, learn what is true outside the confines of the particular case? The litigators before the court, you can be sure, will not be teaching us what is true.
Antitrust In Transition, Panel Discussion, 54 Antitrust L.J. 31, 36 (1985).
And I think Lawrence Lessig would have a field day with this stuff! ;) |
