Tuesday, September 29, 2009
Identifying and Remedying Exclusionary Conduct: Microsoft, the DOJ Section 2 Report, and the New Administration
Posted by D. Daniel Sokol
ABSTRACT: The Department of Justice’s Section 2 Report considered in great detail how courts should best go about identifying exclusionary conduct and how they should best remedy that kind of conduct once they found it. Even though the new Assistant Attorney General has now withdrawn the Report as an official statement of Antitrust Division policy, the questions the Report addressed remain for the new administration. In this essay, I will comment on two subsidiary but nonetheless critical subjects that the DOJ addressed in the Report: general standards of exclusion and affirmative-obligation remedies. In both instances, my observations will draw on the experience of United States v. Microsoft, the DOJ’s last and still pending monopolization case.