Judge Kollar-Kotelly Should Pursue Structural Remedy, He Says
WASHINGTON, D.C. - As the historic Microsoft antitrust case enters its final phase, PFF President Jeffrey Eisenach believes a court-ordered breakup of the company is a very real possibility, despite claims that previous court action precludes such a remedy.
“I don’t think the Court of Appeals has constrained the remedy phase in any significant way,” Eisenach said at a policy forum sponsored by the Cato Institute. “What the court did in its finding is enumerate some criteria that a structural remedy ought to satisfy.
“In my view those criteria are easily met in this case, and what the current judge is clearly in a position to do – and should do in my view – is litigate the remedy phase of the trial de novo,” he said. “A structural remedy is on the table.”
Joining Eisenach in calling for a structural remedy was former U.S. Solicitor General Kenneth Starr. Together, they faced Robert Levy of the Cato Institute and Jonathan Zuck of the Association for Competitive Technology in a debate moderated by James C. Miller III of Citizens for a Sound Economy.
“The Justice Depart has seen fit to take [the structural remedy] off the table, but the Tunney Act process presumably will be an avenue the judge will have before her,” Starr said. “In that context, of course, she has to make the sole determination of what is in the public interest. She will have divestiture smack before her.”
Eisenach and PFF Vice President for Research Thomas Lenard have led the Foundation’s extensive research on antitrust issues in hi-tech industries, focusing especially on the Microsoft case. Both are Ph.D. economists with broad experience in and out of government. The Progress & Freedom Foundation has issued a number of studies on the Microsoft case, applying a traditional economic approach to antitrust to evaluate the issues in the case and size up potential remedies.
The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.