Comments on Richard Markovits’ Claim that the Requirement of Possession of Pre or Post Market Power Is Unnecessary in Monopolization and Attempt to Monopolize Cases and a Proposed Second-Best Reconciliation of the Per Se and Conventional Approaches to Dangerous Probability

25 Pages Posted: 8 Nov 2015 Last revised: 19 Jun 2016

See all articles by Jeffrey Lynch Harrison

Jeffrey Lynch Harrison

University of Florida Levin College of Law

Date Written: November 6, 2015

Abstract

Richard Markovits’ view that “neither the pre-conduct nor the post-conduct possession of monopoly power should as a matter of law be required for a Section 2 conviction” could not be more inconsistent with how Section 2 of the Sherman Act has been interpreted. This essay examines his view and concludes that, as an economic matter, he is correct. Specifically, in attempt to monopolize cases, market power is used to determine whether there is a “dangerous probability” that a firm will achieve monopoly status. Market power may measure how close a firm is to monopoly status but is not a measure of its capacity to attain that status. It simply confuses the analysis. Nevertheless some readers may believe the “dangerous probability” element of attempt cases is crucial. The Essay explores possible substitutes for market power as a measure of “dangerousness.”

Keywords: attempt, antitrust, Markovits, monopoly, market power, market share, monopolization

JEL Classification: A1, B21, D21, D42

Suggested Citation

Harrison, Jeffrey Lynch, Comments on Richard Markovits’ Claim that the Requirement of Possession of Pre or Post Market Power Is Unnecessary in Monopolization and Attempt to Monopolize Cases and a Proposed Second-Best Reconciliation of the Per Se and Conventional Approaches to Dangerous Probability (November 6, 2015). 61 Antitrust Bull. 155 (2016); University of Florida Levin College of Law Research Paper No. 16-19. Available at SSRN: https://ssrn.com/abstract=2687201 or http://dx.doi.org/10.2139/ssrn.2687201

Jeffrey Lynch Harrison (Contact Author)

University of Florida Levin College of Law ( email )

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

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