I just ran across an academic analysis of the Microsoft trial that is worthwhile reading for almost anyone interested in the trial. Almost anyone. Some should be warned that -- although it attempts to take a balanced look at the trial -- the paper is written by an academic who clearly believes there is value in antitrust laws and in their enforcement. For those who just can't stomach such a view, I will put a palate-cleansing link at the bottom of this message.
The Importance of the Microsoft Case
antitrustinstitute.org
The author, Albert A. Foer, is president of the American Antitrust Institute. Before answering the question posed in the paper's title, he presents a series of scenarios -- of "possible futures" -- that might come about as a result of the trial and then assigns a probability to each. This is a futurist technique that was much talked about in the old Wired magazine, and will be familiar to its readers.
Here are the six scenarios he presents:
(1) Microsoft Won! Competition Reigns!
or (2) Microsoft Won! The Monopoly from Hell Entrenched!
or (3) Microsoft Won! Now We Have the Oligopoly from Heck!
or (4) The Government Won a Pyrrhic Victory!
or (5) The Government Prevailed! Remedy a Loser!
or (6) The Government Prevailed! Competition Reigns!
He assigns a 1 in 3 likelihood to the first triad of scenarios and a 2 in 3 chance (obviously) to the second triad. And his conclusion to this scenario setting:
I set the probabilities as 1 out of 6 that the Government will win but the remedy will be a loser and 1 out of 2 that the Government will win and the remedy achieves a substantial increase in competition. Note that in my reading of the future, if the Government wins, the probabilities of getting a satisfactory remedy are 75%, whereas if Microsoft wins, the probability of competition asserting itself is only 25%.
Many here will not like that conclusion, but even so, it's worth looking at the scenarios he sets. As he points out, Microsoft investors may lose in the long run even if some variation of the "Micrsoft wins" scenarios plays out. His argument is that Microsoft investors could also win in the end if a variation of the other triad comes to pass.
Foer proposes -- almost as an aside -- a fascinating way to deal with the remedy phase of the trial:
...I would like to see Judge Jackson rule only on liability and propose a general rather than detailed remedy. At that point, he could certify his opinion to the appellate courts for an interlocutory decision. Only after there is a final holding of liability (which spells out what wrongs must be righted) does it make sense to focus in detail on the remedy.
---
Here, as promised is a view from a different side of the trust-buster's ideological divide:
cato.org |
