Why Bork -- Aspen?

[James Love <love@cptech.org>]

Today I received a call from an antitrust lawyer who suggested I look at
the 1985 Aspen case to understand why Bork may have been retained by
Netscape, on matters concerning Microsoft's conduct.  These were the
references to judge Bork that I found.  Text associated with footnotes
33 and 39 seem particularly relevant.  

	Jamie


U.S. Supreme Court, ASPEN SKIING CO. v. ASPEN HIGHLANDS SKIING CORP.,
472 U.S. 585 (1985), 472 U.S. 585

As Judge [472 U.S. 585, 603] Bork stated more recently: "Improper
exclusion (exclusion not the result of superior efficiency) is always
deliberately intended."29

[Footnote 29] R. Bork, The Antitrust Paradox 160 (1978) (hereinafter
Bork).

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Ski Co.'s decision to terminate the all-Aspen ticket was thus a decision
by a monopolist to make an important change in the character of the
market.31

[Footnote 31] "In any business, patterns of distribution develop over
time; these may reasonably be thought to be more efficient than
alternative patterns of distribution that do not develop. The patterns
that do develop and persist we may call the optimal patterns. By
disturbing optimal distribution patterns one rival can impose costs upon
another, that is, force the other to accept higher costs." Bork 156.

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If a firm has been "attempting to exclude rivals on some basis other
than efficiency,"33 it is fair to characterize its behavior as
predatory.
{Footnote 33] Bork 138.

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That conclusion is strongly supported by Ski Co.'s failure to offer any
efficiency justification whatever for its pattern of conduct.39

[Footnote 39] "The law can usefully attack this form of predation only
when there is evidence of specific intent to drive others from the
market by means other than superior efficiency and when the predator has
overwhelming market size, perhaps 80 or 90 percent. Proof of specific
intent to engage in [472 U.S. 585, 609] predation may be in the form of
statements made by the officers or agents of the company, evidence that
the conduct was used threateningly and did not continue when a rival
capitulated, or evidence that the conduct was not related to any
apparent efficiency. These matters are not so difficult of proof as to
render the test overly hard to meet." Bork 157 (emphasis added).



-- 
James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
love@cptech.org | http://www.cptech.org
voice 202.387.8030, fax 202.234.5176