Is Certainty a Good Thing for Section 2 Standards?

Cite this Article
Joshua D. Wright, Is Certainty a Good Thing for Section 2 Standards?, Truth on the Market (March 14, 2007),

I was searching through the eCCP site for some interesting antitrust reading material, which it always carries in surplus, and came across this testimony from Joe Sims (here is his Jones Day bio) at the Section 2 hearings discussing the lack of certainty in monopolization cases:

This is generally a good thing, but it inevitably carries with it uncertainty of outcomes in particular cases. I noticed that the Microsoft representative in an earlier hearing took the common business position of urging that there be more clarity in the law. This is perhaps understandable given that company’s recent history, but it is a common business position – just tell me the rules and I will follow them. I have always thought that was a relatively short-sighted position by business. More clarity will not always (or even generally) mean better law, and in this area of law it will almost inevitably mean more restrictive rules than are justified by the facts, and probably long term adverse economic effects. It would make the advisory job easier, but probably is not in the long term public interest or in the long run interest of business generally. But unfortunately, in many areas businesses today are driven to concentrate on the short run, and don’t have much incentive to take the long view.

That is an interesting perspective and one that stands out from the chorus (of which I a member) advocating increased certainty and bright line rules in antitrust. However, I always thought the primary case for rules in antitrust was that fuzzy standards in antirtust invite greater Type II error. eCCP also has various other testimony, editorials, book reviews, and scholarly works in Competition Policy International. Go check them out.