Posner's Program for the Antitrust Division: A Twenty-Five Year Perspective

35 Pages Posted: 30 May 2009 Last revised: 22 Sep 2015

See all articles by John E. Lopatka

John E. Lopatka

The Pennsylvania State University (University Park) – Penn State Law

William H. Page

University of Florida - Levin College of Law

Date Written: 1995

Abstract

This article, published in 1995, reconsiders Richard A. Posner, A Program for the Antitrust Division, 38 U. Chi. L. Rev. 500 (1971), twenty-five years after its publication. Posner argued that the Antitrust Division of the U.S. Department of Justice should try to maximize the efficiency of antitrust enforcement by discovering and implementing those policies whose net social product is largest. His guide for identifying those policies was the consensus of opinion among mainstream economists. Applying this standard, Posner argued that the Division should limit its focus to cartels (including tacit collusion), horizontal mergers, and regulatory reform. We argue that the Division has largely followed Posner's approach, although it has essentially abandoned tacit collusion as a basis for liability. One major departure from Posner's prescriptions was the Division's filing of its first case against Microsoft. We suggest that novel theories of anticompetitive exclusion and the theory of network effects, developed since Posner's article, do not justify redirecting public enforcement resources against exclusionary practices.

Keywords: antitrust, cartels, price-fixing, tacit collusion, exclusionary practices, public enforcement

JEL Classification: K21, K42, L12, L13, L41

Suggested Citation

Lopatka, John E. and Page, William Hepburn, Posner's Program for the Antitrust Division: A Twenty-Five Year Perspective (1995). Southern Methodist University Law Review, Vol. 48, 1995. Available at SSRN: https://ssrn.com/abstract=1411815

John E. Lopatka

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

William Hepburn Page (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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