Microsoft and Trinko: A Tale of Two Courts

In this comment for an upcoming symposium in the Utah Law Review in honor of the retirement of John Flynn, I examine the 2001 opinion of the DC Circuit in Microsoft and the Supreme Court\u27s 2004 opinion in Trinko and compare them as attempts to comprehensively define the law of monopolization. Using the insights of the legal process school, I examine which opinion succeeds as a form of reasoned elaboration and which opinion will gain acceptance among lower courts and commentators in this vital area of antitrust law. I conclude that the Microsoft opinion should stand the test of time as a rigorous, intellectually honest, and well reasoned synthesis of the law of monopolization. In contrast, Trinko suffers from numerous errors of law, fact, economics, antitrust policy, and contains much unreasoned dicta that extends far beyond its narrow holding about the interface between antitrust and telecommunication regulation. Trinko thus fails the test of reasoned elaboration, one of the key hallmarks of a legitimate and persuasive judicial opinion

The Law in Action at the WTO

This review of Gregory Shaffer\u27s new book Defending Interests: Private-Public Partnerships in WTO Litigation argues that Shaffer has made an important contribution to the field of international economic law. Shaffer does this by using the insights of legal realism and strong empirical work to illustrate the law in action rather than the law on the books in terms of how international trade cases in the WTO are actually generated and resolved

Microsoft and Trinko: A Tale of Two Courts

In this comment for an upcoming symposium in the Utah Law Review in honor of the retirement of John Flynn, I examine the 2001 opinion of the DC Circuit in Microsoft and the Supreme Court\u27s 2004 opinion in Trinko and compare them as attempts to comprehensively define the law of monopolization. Using the insights of the legal process school, I examine which opinion succeeds as a form of reasoned elaboration and which opinion will gain acceptance among lower courts and commentators in this vital area of antitrust law. I conclude that the Microsoft opinion should stand the test of time as a rigorous, intellectually honest, and well reasoned synthesis of the law of monopolization. In contrast, Trinko suffers from numerous errors of law, fact, economics, antitrust policy, and contains much unreasoned dicta that extends far beyond its narrow holding about the interface between antitrust and telecommunication regulation. Trinko thus fails the test of reasoned elaboration, one of the key hallmarks of a legitimate and persuasive judicial opinion

The Incoherence of Punishment in Antitrust

Antitrust has a complex set of criminal and civil remedies enforced by a multiplicity of public and private actors. Antitrust remedies are frequently analyzed from the point of view of deterrence and compensation, but only rarely from the perspective of punishment. The few debates about punishment concern whether defendants are over-punished or under-punished. This Article analyzes a different question about punishment in antitrust—namely that total punishment in any given antitrust case varies dramatically for offenses with identical or similar status under the law and there is no a prioi way to predict punishment levels for a particular case or a particular defendant. This is the real but overlooked incoherence of antitrust punishment which has real consequences both for antitrust and for tort scholars looking to antitrust as a model of certainty in questions of punishment and damages