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Kenneth P. Ewing, Oct 1, 2008
What to make of the Department of Justice, Antitrust Division (“DOJ”)’s recent
Unilateral Conduct Report (“Report”)—does it point to a path through the Scylla and Charibdis of monopoly enforcement policy, as the current Assistant Attorney General for Antitrust portrays it, or, to borrow the words of one of his predecessors but the sentiments of a majority of the Federal Trade Commission (“FTC”), does it portend Giant Steps in the wrong direction? I suggest that the Report, while perhaps not of such mythic proportions (despite its 181 page girth) nonetheless takes us a few halting steps down a promising path that we should continue along for a while and then reassess in, say, five years.
As a work of antitrust scholarship and analysis, the Report is clearly a success. The staffs of the DOJ and FTC have compiled and at least briefly addressed all the major and many less-than-major U.S. cases considering unilateral conduct. Perhaps even more useful is the collection and brief characterization of over 200 articles and books on the subject. And even if one disagrees with the ultimate policy recommendations, there is no question that the structured analytical discussion of this vast material illuminates many of the issues that need to be debated when trying to address unilateral conduct within the antitrust laws. If only to benefit from this prodigious scholarly work, I have no doubt courts and counselors will turn to this Report for years to come.
