The Error Cost Approach to Section 2 Legal Standards

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Keith Hylton, Jul 15, 2009

The decision of the new DOJ Antitrust Division to abandon the 2008 Section 2 Report is, in part, a signal that it intends to adopt different enforcement priorities, and, in part, a signal that its ambition is to challenge existing Section 2 law. If the latter, then it is also an effort to reverse or set aside the adopted lessons of the error cost approach. This is a tall order, given the slow pace of change of legal doctrine, and especially the theories that undergird them. The article is an adaption of a posting originally presented in a Section 2 Symposium on the blog site, Truth on the Market, available online at TruthOnTheMarket.