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William Page, Jul 13, 2009
The Department of Justice’s Section 2 Report (“Report”) considered in great detail how courts should best go about identifying exclusionary conduct and how they should best remedy that kind of conduct once they found it. Even though the new Assistant Attorney General has now withdrawn the Report as an official statement of Antitrust Division policy, the questions the Report addressed remain for the new administration. In this essay, I will comment on two subsidiary but nonetheless critical subjects that the DOJ addressed in the Report: general (as opposed to practice-specific) standards of exclusion and affirmative-obligation (as opposed to prohibitory) remedies. In both instances, my observations will draw on the experience of United States v. Microsoft; the DOJ’s last and still pending monopolization case. The article is an adaption of a posting originally presented in a Section 2 Symposium on the blog site, Truth on the Market, available online at TruthOnTheMarket.
