From Volume 85, Number 3 (March 2012)
Academic commentators have, over the years, lamented the failure of monopoly remedies to achieve effective relief. For some, the failure highlighted the foolishness of the law interfering with market structures and conduct, while for others it was evidence of the failure of the courts and law enforcers to act with sufficient boldness and courage. Both lines of critics focus on the options chosen and by implication assume that a better option would have existed if only those enforcing the law had adopted it. A third perspective has emerged in a few works, notably that of Professor and former Federal Trade Commissioner William Kovacic, who has pointed out the great difficulty of finding appropriate and workable remedies. One of his central observations is that in monopoly litigation, the remedy should be a central concern at the outset of the case and not an afterthought.
The problem with finding appropriate remedy reflects in at least some of the cases an apparent failure to approach monopoly litigation with an “end game” in mind. But other institutional factors play a significant role in the apparently modest results of some remedies. Among those influences are the inherent economics of the market being monopolized, changes in the policy goals of those charged with enforcing antitrust law, the technological dynamics of the markets at issue, and the personification of the corporation such that some remedies are analogized to a “death sentence,” which in turn is conceived to be an extreme punishment for mere corporate misconduct.