Document Type
Article
Publication Title
Maine Law Review
Publication Date
2007
Volume
59
First Page
111
Abstract
(Excerpt)
Section 2 of the Sherman Act prohibits monopolization, attempted monopolization and conspiracy to monopolize. The § 2 prohibitions are rooted in concerns "that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." At the same time, courts have recognized that size alone cannot be the basis of condemnation under § 2, for as Learned Hand observed in Alcoa, "[t]he successful competitor, having been urged to compete, must not be turned upon when he wins." Reconciling the conflicting currents of § 2—preventing abusive practices by dominant firms without, at the same time, chilling the competitive vigor of dominant firms—has proven to be a difficult task for the courts because "it is sometimes difficult to distinguish robust competition from conduct with long-run anticompetitive effects.''
Early monopolization cases found violations based on predatory acts, exclusionary conduct, or refusals to deal. However, the decisions in these cases were more the product of each court's visceral reaction to the cases in question rather than the end result of hard legal analysis of § 2 and thus provided insufficient guidance for later cases.
Comments
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol59/iss1/5/