Comments on Richard Markovits’s Claim That the Requirement of Possession of Pre or Post Market Power Is Unnecessary in Monopolization and Attempt to Monopolize Cases and a Proposed Second-Best Reconciliation of the Per Se and Conventional Approaches to Dangerous Probability

Abstract

Richard Markovits’s view that “neither the pre-conduct nor the post-conduct possession of monopoly power should as a matter of law be required for a Section 2 conviction” could not be more inconsistent with how Section 2 of the Sherman Act has been interpreted. This article examines his view and concludes that, as an economic matter, he is correct. Specifically, in attempt to monopolize cases, market power is used to determine whether there is a “dangerous probability” that a firm will achieve monopoly status. Market power may measure how close a firm is to monopoly status but is not a measure of its capacity to attain that status. It simply confuses the analysis. Nevertheless some readers may believe the “dangerous probability” element of attempt cases is crucial. The article explores possible substitutes for market power as a measure of “dangerousness.”