The First Principles Approach to Antitrust, Kodak, and Antitrust at the Millenium

Abstract

In this essay, I reflect on an important contribution to the development of antitrust reasoning and law that arises out of the Supreme Court\u27s decision in Eastman Kodak Co. v. Technical Services, Inc. In particular, I discuss the decision\u27s relationship to what I have termed the first principles approach to market power and antitrust. In my view, one reason that Kodak is important is that it does not take a wooden approach in its economic reasoning. Instead, the opinion nimbly applies the basic principles of competitive analysis to a difficult dynamic context. This enables the majority to avoid rigid adherence to a single brand of economic orthodoxy, a strength demonstrated by the opinion\u27s evaluations of market definition and market power. This willingness to adapt to the continuing advances of economic analysis arising from new market conditions and new intellectual insights suggests that antitrust law is less likely to become an anachronism that will be superceded by some other form of governmental oversight