Microsoft and Trinko: A Tale of Two Courts

Trinko's main defect is its attempt to radically redefine the law of monopolization while purporting to uphold established doctrine. It did far more than it had to and did it badly. Justice Stevens's opinion on standing would have sufficed, and in the alternative, the first few pages of the majority opinion would have sufficed once it found greater certainty in the regulatory provisions of the Telecommunications Act. What follows is an ode to laissez faire that is in stark contrast to everything antitrust has stood for since its inception, regardless of one's opinions about the validity of any particular theory or case.

In contrast, Microsoft did its job and it did pretty well, even if one believes, as Gavil and First do, that it should have done more.