Timothy J. Muris

A Response to Professor Goldberg: An Anticompetitive Restraint by Any Other Name . . .

In ignoring the facts of the Three Tenors case and the transactions costs of legal rulemaking, Professor Goldberg would unnecessarily complicate antitrust law to the detriment of consumers. Contrary to his assertions, the FTCs opinion does not favor ownership over contract. The parties could have chosen to coordinate Three Tenors products and promote a brand, but they did not. Indeed, their contract explicitly provided otherwise. For a small class of cases in which the parties restrain basic forms of competition such as price or advertising without a legitimate claim of consumer benefit antitrust law avoids the costs of finding market power. In any event, the facts of the Three Tenors case provide a natural experiment revealing that the agreement the Commission proscribed in fact harmed consumers.

Is Heightened Antitrust Scrutiny Appropriate for Software Markets

Economics, particularly through the field of Industrial Organization, has always influenced antitrust. The power of economics is its ability to provide visions of the world — i.e. theories — that can explain behavior — i.e. facts. Both theory and fact are crucial. Theory without fact has an untested quality that many abhor, particularly lawyers who consider themselves steeped in everyday reality; fact without theory has an ad hoc cast, making, at the extreme, all cases individual and unconnected to each other. Both theory and fact have had important roles in the history of the influence of economics upon antitrust, as I have written elsewhere.1

Discordant Notes: A Reply to Professor Wright

Professor Wright mischaracterizes both the legal basis and the factual context of the FTCs Three Tenors opinion, recently affirmed by Judge Ginsburgs opinion for a unanimous panel of United States Court of Appeals for the District of Columbia Circuit. Neither opinions legal analysis relies on the timing of the moratorium agreement. Under either opinion, the agreement to eliminate advertising and price competition would have been proscribed even had it occurred when the joint venture was formed. Moreover, the factual underpinnings of the case differ from Professor Wrights assertions. In particular, the facts demonstrate that the joint venture did not attempt to promote the combination of various three tenors products. The only coordination with the first two albums was a restriction on their discounting and advertising. There was none of the production, distribution, and promotion among the three albums normally associated with an integrated effort.