re: Why Bork -- Aspen?

["Wayne Dale Collins" <wcollins@shearman.com>]

I not sure that this is correct (or at least complete) either as a
statement of law or a statement of public policy.  There are at least two
problems.

First is the perennial question of what constitutes a "plausible efficiency
justification."  A lot of writing uses the term, but I am not sure exactly
what is mean by it or the quantum of proof by which it must be shown.

Second, I don't know what it means to "impair[ ] the ability of rivals to
constrain a monopolist's market power."  Does this mean all rivals, some
rivals, or any rivals?  Does the "ability to constrain" itself have any
qualifying threshold, or does any impediment suffice?  And what is the
nature of the defense, if any, if the rivals do not make "reasonable"
reasonable to circumvent any such constraints (ala the duty to mitigate in
tort law), and if there is such a defense, at what point to the efforts
needed to circumvent the constraints become unreasonable.






jjacobson@akingump.com on 04/23/98 07:07:11 AM

Please respond to jjacobson@akingump.com


To:   AT-MEMBERS@ABANET.ORG, antitrust@essential.org,
      at-members-approval@mail.abanet.org
cc:   rbork@aei.org (bcc: Wayne Dale Collins/NY/NA/ShS)

Subject:  re: Why Bork -- Aspen?




Perhaps it is also because conduct that impairs the ability of rivals to
constrain a monopolist's market power, without any plausible efficiency
justification, is subject to antitrust condemnation under any responsible
view of antitrust - as the passages from the Antitrust Paradox quoted by
Stevens in Aspen attest.
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