The Systems Approach to Antitrust Analysis

• DOI: 10.1177/0003603X1105600102
• Author: Jonathan L. Rubin
• Date: 01 March 2011
• Published date: 01 March 2011
• Subject Matter: Article

The systems approach

to antitrust analysis

BYJONATHAN L. RUBIN*

Keeping pace with new and evolving features of industrial markets, and

arriving at policies that strike an appropriate relationship between

market oversight and private enterprise, will require new approaches to

the legal analysis of impediments to competition. The use of control over

system modularity and interface access policy by platform or network

operators to restrict competition in adjacent or complementary markets

is a competitive restraint deserving of modernized legal analysis.

Although platform operators seek to capture the efficiencies of system

modularity in upstream production, they frequently adopt policies that

impede the ability of customers and end-users to benefit from

modularity in downstream distribution and sales. Unfortunately,

traditional anticollusion and antimonopolization law remains ill

equipped to address overly restrictive conduct by platform operators.

Historically, tying law provided a useful legal framework for the

analysis of systems issues, but current doctrine fails to deliver a coherent

antitrust approach, as illustrated by a discussion of two recent cases.

I. INTRODUCTION

The law inexorably lags behind developments in wider society. For

decades, governmental policies toward business have followed the

Chicago school of economics view that free markets unfettered by gov-

THE ANTITRUST BULLETIN:Vol. 56, No. 1/Spring 2011 :13

* J.D., Ph.D., Washington, D.C. This article is adapted from my remarks

at the American Antitrust Institute Invitational Symposium on Systems Com-

petition, National Press Club, Washington, D.C. (June 17, 2009).

© 2011 by Federal Legal Publications, Inc.