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To: Bearded One who wrote (23666)	11/24/1999 12:19:00 AM
From: Gerald R. Lampton	Read Replies (1) \| Respond to of 24154

Microsoft took actions against companies which presented threats to its monopoly. Those actions were predatory and simultaneously showed that even if Microsoft's monopoly was 'natural' at one point, it was no longer so. I beg to differ. Yes, Microsoft did engage in predatory conduct. They were mean and nasty. But there is no evidence in the trial that I'm aware of showing that the bad things Microsoft did actually increased its market power over what it would have otherwise been or account for why the Intel compatible PC operating system market is still monopolistic. In other words, Microsoft looks bad, but when stacked up against the mighty "applications barrier to entry," which is the true source of Microsoft's market power, the things Microsoft's bumbling idiot "executives" did were a tempest in a teapot. I'll even go you one further: I would argue that, based on the evidence at trial, there is no way to be sure, even if Microsoft were to stop its shenanigans tomorrow, even with all the remedies in the world, conduct or structural, that the PC OS market would ever lose its monopolistic tendencies or become competitive. I think Warren-Boulton made this very point in his testimony, in connection with unbolting the browser and the other conduct remedies he was discussing. In my opinion, that's the fatal flaw in the government's case, and I'd bet money that's why the feds and the state AGs are having such a hard time coming up with a suitable remedy.

To: Bearded One who wrote (23666)	11/24/1999 12:44:00 AM
From: Gerald R. Lampton	Read Replies (1) \| Respond to of 24154

The Posner quote on breaking up AT&T, in context: I have been speaking thus far only of Bill's [Baxter's] academic accomplishments. In 1981 he became the head of the Justice Department's antitrust division. His administration of the division was the most distinguished since Thurman Arnold's, or perhaps ever; and it has not been equaled since. It proved to be a turning point in U.S. antitrust policy . . . . "[F]rostily cerebral, fiercely independent," and alarmingly candid--as when he referred to the "whacko theories and rubbish opinions of the Supreme Court" in antitrust cases --he was witty to boot, as when he said that the purpose of the Robinson-Patman Act was "to put lead weights in the saddle bags of the fastest riders." He was the first head of the antitrust division to turn his back firmly on the pieties and shibboleths of antitrust policy (though one of his predecessors, Donald Turner, the distinguished lawyer-economist, had taken the first steps in this direction back in the middle 1960s) and to insist in actions as well as words--the most notable action being the abandonment of the Department's monopolization suit against IBM--thatthe only purpose of antitrust is to promote economic efficiency. His successors, even unto the present Democratic Administration, have toed this line, whatever disagreements they may have with him and with each other over the effect of particular business practices on efficiency. As one journalist summed up, "In two and a half years at the Justice Department, the acerbic 53- year-old law professor disposed of the two largest monopolization suits in history, rewrote the guidelines for corporate mergers, settled several international antitrust disputes and relentlessly pushed antitrust policy away from legal dogma and toward an emphasis on economic efficiency." In the words of the great antitrust scholar Phillip Areeda, "The greatest strength of his [Baxter's] tenure was a willingness to grapple with difficult and complicated cases and do what he thought was right in a rather courageous way." Baxter was not a mere retrencher. By threatening to litigate the Department's monopolization suit against AT&T "to the eyeballs," he brought the suit to a triumphant conclusion (over powerful opposition within the Administration, for example from the Defense Department--which he successfully faced down, saying "I do not intend to fold up my tent and go away because the Department of Defense expresses concern") with the entry in 1982 of a consent decree requiring AT&T to divest itself of the Bell operating companies. This was a landmark in the deregulation movement and set the stage for the enormous growth in telecommunications that is so salient a feature of today's economy, although I share the view of those who believe that it was unwise to limit, as the decree did (and at Baxter's insistence), the right of the operating companies to enter nonregulated businesses. Posner, Symposium: Tribute to William F. Baxter, Introduction, 51 Stan. L. Rev. 1007, 1009 (1999).