Thom, Tom, and Section 2

I highly recommend co-blogger Thom’s paper (discussed in this post) for those interested in the current Section 2 debate over the appropriate standard for exclusionary conduct.  While I tend to fall into the camp that views unilateral firm conduct as too diverse for a “holy grail” test to make sense, and therefore support different tests for different types of conduct, Thom’s paper does an excellent job of summarizing these tests and working through the potential implications of the Supreme Court’s Weyerhaeuser decision for each of them. 

Antitrust AG Tom Barnett also chimed in on Section 2 (though not the Holy Grail issue) in a recent speech entitled “Section 2 Remedies: A Necessary Challenge.”  The gist of the speech appears to be a defense of the remedies in the U.S. Microsoft decision and a subtle reminder that remedies should be sensitive to the risk of false positives, their impact on incentives, and above all should not harm competition (“Follow the advice of Hippocrates” says Barnett).   Afterall, those remedies came under attack in the Microsoft CFI decision as insufficient to re-establish competition.  Barnett’s speech also emphasizes the importance of avoiding the “tempting error” of thinking “that a remedy is only successful if it leads to a reduction in the defendant’s share of the market,” adding that “changing market shares is not in and of itself a proper goal of antitrust policy, even where a violation of antitrust law has been found.”  Hmmm.  I wonder who he’s talking to?