Howard A. Shelanski

Antitrust Divestiture in Network Industries

The landmark Microsoft case raises challenging questions concerning antitrust remedies. In this Article, we propose a framework for assessing the costs and benefits of different remedies, particularly divestiture, in monopolization cases involving network industries. Our approach can assist a court or enforcement agency not only in analyzing the welfare effects of divestiture, but also in choosing more generally among alternative kinds of remedies. The framework would, for example, apply to a courts choice between damages and injunctive remedies or between behavioral injunctions and structural injunctions. After developing our framework, we apply it to the divestiture proposals made by the government and others in the Microsoft case. We argue that those proposals leave open important questions that must be answered before divestiture can be shown to be either the best remedial alternative or to create likely net gains in economic welfare.

Merger Analysis and the Treatment of Uncertainty: Should We Expect Better?

Life is uncertain. So is merger analysis. There is a well-developed set of tools to deal with decision making under uncertainty. Experience suggests that the federal antitrust agencies and the courts have yet to take full advantage of those tools. This chapter suggests ways that decision theory could be applied to merger analysis to improve enforcement and its impacts on consumer welfare.