Who Started It? Who Stopped It?: A Modest Proposal to Reverse the Rankings of Type 1 and Type 2 Errors in Predation Jurisprudence

• Pages: 37-46

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CHAPTER III

Who Started It? Who Stopped It?: A Modest Proposal to

Reverse the Rankings of Type 1 and Type 2 Errors in

Predation Jurisprudence

Alfred E. Kahn*

There is a certain presumption in my having accepted John

Shenefield‘s invitation to address you today, considering that it is exactly

55 years since S. Chesterfield Oppenheim invited me to serve on the

Attorney G eneral‘s National Committee to Study the Antitrust Laws—

and during that period I have for the most part not been directly involved

with antitrust issues. Each time I considered r escinding my acceptance,

however, I refreshed my indignation by consulting one or another of the

Supreme Court decisions in cases of asserted predation, in which Justices

steeped in or tainted by the University of Chicago tradition make

essentially economic generalizations—wholly unsupported except by

incantation—that have by repetition taken on the aura of biblical truths:

these I do feel qualified to challenge. In doing so, I take moral support,

at least, from some of the anti-Chicago literature over that same period,1

while in no way presuming to offer a balanced exposition and evaluation

* Robert Julius Thorne Professor of Political Economy, Emeritus, Cornell

University; Special Consultant, NERA Economic Consulting, Inc.;

former Chairman of the New York State Public Service Commission and

Civil Aeronautics Board; and Advisor to the President (Carter) on

Inflation.

This is a heavily revised version of a presentation given to the Section of

Antitrust Law of the American Bar Association at their Antitrust

Symposium in Jackson Hole, Wyoming, on May 14, 2009.

In exercising his nonagenarian entitlement to play the curmudgeon, the

author disassociates NERA from the views he expresses, while at the

same time justifying his impatient italicizations by the apparent

imperviousness of so much of our judiciary to th e most elementary

relevant facts when presented in mere roman type.

1. See, e.g., ROBERT PITOFSKY, HOW THE CHICAGO SCHOOL OVERSHOT

THE MARK: THE EFFECT OF CONSERVATIVE ECONOMIC ANALYSIS ON

U.S. ANTITRUST (2008); Herbert Hovenkamp, Antitrust Policy After

Chicago, 84 MICH. L. REV. 213 (1985).