Monday, October 17, 2005
The September 2005 issue of Antitrust Bulletin contains an analysis of the 2004 Trinko decision by Professor Phil Weiser of The University of Colorado Law School. He concludes:
"...antitrust courts should make discretionary judgments about whether the effectiveness of regulation in a given set of circumstances renders antitrust oversight unnecessary. By so doing, antitrust courts would defer to regulatory agencies only where those agencies are reasonably capable of managing the competition policy matter at issue. If antitrust courts opt for a broader rule of restraint, such a stance would only fuel an unfortunate trend of devaluing the role of antitrust oversight and overly valuing the capabilities of alternative institutional actors. Rather than adopt that stance, antitrust courts should evaluate what revisions to legal doctrine and procedural practices can best evaluate claims that antitrust courts might otherwise seek to dismiss under Trinko."
Here's a link to SSRN, which has a link to the Antitrust Bulletin article.