Bork's Op Ed piece

[antimonopoly@juno.com (Ralph Anspach)]

         Today,  May 4,  an important,  perhaps revolutionary,  Op Ed
column by Judge Borke appeared in the New York Times.  He explains why he
chose to represent Netscape rather than Microsoft.  Most important,  the
man who argued Brooke for the Chicago School now asserts that predatory
practices can be a violation under Sherman 2 (and Robinson-Patman?) in
ways which have nothing to do with the supposed stricture that predation
only covers recoupable,  below-cost  price cuts. He also says that he
always believed this to be true.  
          Could this mean that the lower courts' reading of Brooke has
been wrong all along? Or am I missing something.
	Carl Person has argued all along that if the plaintiff has the
burden of proving below-cost non-recoupment pricing as a necessary
condition for predation,  antitrust is practically dead because,  apart
from having Linda Tripp wire conversations of conspiracies (like the open
phone in the airline case),  there is nothing a monopolist can do which,
even when proven in court,  will not reward him with a pat on the back by
the courts h through  summary judgments.  
	 Ralph Anspach has argued that antitrust is even deader because
below-cost pricing (whether below marginal cost or below average variable
cost or below average cost --who knows?) can always be refuted by a
well-paid expert who plays games with assignment of fixed costs. And
guess which side in an an antitrust case can hire the more  high-powered
(in terms of dazzling judges) experts?  
	Not only that but the efficiency criterion opens up the Pandora's
box of how one measures efficiency in the absence of the Darwinian
competitive process which the classics argued  sets the standard of what
is efficient.  When a student asks me whether the local utility or the
army is efficient,  I always answer that I haven't got the vaguest idea
in the absence of two utitilities or two armies competing with each
other. But  Adam Smith taught that monopoly is the enemy of good
management -  maybe the old fool knew something even though he wrote
before the marginal revolution.
	All this also feeds into the Joe Bain discussion.  Bain fits into
the tradition of Adam Smith,  Marshall and Keynes in methodology,  which
means stay away from simple-minded,  monistic analyses based on strong
and often metaphysical assumptions. Therefore, Bain comes up with a
variety of standards to be used to evaluate monopolism.  The rest is
discretion and judgment.  Compare this to the simple-minded freshman
economic standards of marginal cost pricing served up by some Chicago
economists.,  

Ralph  

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