Document Type
Article
Publication Date
1-2021
Journal Title
Yale Law Review Forum
Abstract
The rise of large firms in the digital economy, including Amazon, Apple, Facebook, and Google, has rekindled the debate about monopolization law. There are proposals to make finding liability easier against alleged digital monopolists by relaxing substantive standards; to flip burdens of proof; and to overturn broad swaths of existing Supreme Court precedent, and even to condemn a law review article. Frank Easterbrook’s seminal 1984 article, The Limits of Antitrust, theorizes that Type I error costs are greater than Type II error costs in the antitrust context, a proposition that has been woven deeply into antitrust law by the Supreme Court. We consider the implications of this assumption on the standard of proof. We find that, taking variants of the Easterbrook assumption as given, the optimal standard of proof is stronger than the preponderance of the evidence standard. Our conclusion is robust to how one specifies the preponderance of the evidence standard and stands in stark contrast to contemporary proposals to reduce or eliminate the burden of proof facing antitrust plaintiffs in digital markets.
First Page
622
Last Page
646
Num Pages
25
Volume Number
130
Publisher
The Yale Law Journal Company, Inc.
Recommended Citation
Joshua D. Wright & Murat C. Mungan,
The Easterbrook Theorem: An Application to Digital Markets,
130
Yale L.J.F.
622
(2021).
Available at:
https://scholarship.law.tamu.edu/facscholar/1831
File Type
Included in
Antitrust and Trade Regulation Commons, Civil Procedure Commons, Commercial Law Commons, Evidence Commons, Internet Law Commons, Science and Technology Law Commons