The Economics of Antitrust Law

Abstract

This Comment on the other contributions to this symposium addresses their authors’ and my positions on (1) the definability of markets and various approaches to defining markets, (2) the definition and legal relevance of market (economic) power, (3) the economic functions and legality of vertical practices (correctly analyzed as a matter of law), (4) the legality of unsuccessful attempts to commit acts whose successful completion would be illegal, (5) so-called “objective intent,” so-called “subjective intent,” and “specific anticompetitive intent,” (6) the relevance of the economic efficiency of conduct or its prohibition to its legality, (7) the defensible goals of antitrust policy, (8) the appropriateness of courts’ using decision-rules that minimize the losses generated by the Type I and Type II errors they will make when those rules recommend decisions that would not find defendants liable in a civil case if and only if the preponderance of evidence implies that the defendants violated the law and guilty in a criminal case if and only if the evidence establishes their guilt beyond a reasonable doubt, and (9) the extent to which my “conception” (in one contributor’s terms)—i.e., my novel conceptual systems, economic theories, and legal conclusions—in his words “has ended up faring very well”—i.e., has been progressively and now largely accepted by antitrust scholars, antitrust enforcement-agencies, and courts.