Ahead of His Time

Abstract

Prof. Markovits has been a prescient commenter on antitrust. His early and insightful characterization of the harm from merger as the loss to consumers from being able to trade off their two top choices can be seen in the use of diversion ratios in unilateral effects merger cases. So too does the change in assessing unilateral effects mergers from market concentration to direct measurement of competitive effects match his skepticism of market definition. I share Prof. Markovits's view that prior dominance should not be a prerequisite for monopolization cases, at least those involving exclusionary practices. I am skeptical that intent should play a role in monopolization, other than as a source of expert evidence that a practice will be harmful. Whether antitrust should be about maximizing consumer welfare or punishing powerful actors with bad intent may be a fundamental divide in perspective in the antitrust community.