Tuesday, February 13, 2007
Posted by D. Daniel Sokol
ABSTRACT: In this comment for an upcoming symposium in the Utah Law Review in honor of the retirement of John Flynn, I examine the 2001 opinion of the DC Circuit in Microsoft and the Supreme Court's 2004 opinion in Trinko and compare them as attempts to comprehensively define the law of monopolization. Using the insights of the legal process school, I examine which opinion succeeds as a form of reasoned elaboration and which opinion will gain acceptance among lower courts and commentators in this vital area of antitrust law. I conclude that the Microsoft opinion should stand the test of time as a rigorous, intellectually honest, and well reasoned synthesis of the law of monopolization. In contrast, Trinko suffers from numerous errors of law, fact, economics, antitrust policy, and contains much unreasoned dicta that extends far beyond its narrow holding about the interface between antitrust and telecommunication regulation. Trinko thus fails the test of reasoned elaboration, one of the key hallmarks of a legitimate and persuasive judicial opinion.