Comments on Richard Markovits’s Claim That the Requirement of Possession of Pre or Post Market Power Is Unnecessary in Monopolization and Attempt to Monopolize Cases and a Proposed Second-Best Reconciliation of the Per Se and Conventional Approaches to Dangerous Probability

• Author: Jeffrey L. Harrison
• Published date: 01 March 2016
• Date: 01 March 2016
• DOI: http://doi.org/10.1177/0003603X15625121

Article

Comments on Richard Markovits’s

Claim That the Requirement of

Possession of Pre or Post Market

Power Is Unnecessary in

Monopolization and Attempt to

Monopolize Cases and a Proposed

Second-Best Reconciliation of the

Per Se and Conventional

Approaches to Dangerous

Probability

Jeffrey L. Harrison*

Abstract

Richard Markovits’s view that ‘‘neither the pre-conduct nor the post-conduct possession of monopoly

power should as a matter of law be required for a Section 2 conviction’’ could not be more incon-

sistent with how Section 2 of the Sherman Act has been interpreted. This article examines his view and

concludes that, as an economic matter, he is correct. Specifically, in attempt to monopolize cases,

market power is used to determine whether there is a ‘‘dangerous probability’’ that a firm will achieve

monopoly status. Market power may measure how close a firm is to monopoly status but is not a

measure of its capacity to attain that status. It simply confuses the analysis. Nevertheless some readers

may believe the ‘‘dangerous probability’’ element of attempt cases is crucial. The article explores

possible substitutes for market power as a measure of ‘‘dangerousness.’’

Keywords

antitrust, attempt, dangerous probability, Markovits, market power, market share, monopolization,

monopoly, predatory pricing, Spectrum Sports

*College of Law, University of Florida, Gainesville, FL, USA

Corresponding Author:

Jeffrey L. Harrison, College of Law, University of Florida, Gainesville, FL 32611, USA.

Email: harrisonj@law.ufl.edu

The Antitrust Bulletin

2016, Vol. 61(1) 155-166

ªThe Author(s) 2016

Reprints and permission:

sagepub.com/journalsPermissions.nav

DOI: 10.1177/0003603X15625121

abx.sagepub.com