Unilateral Refusals to Deal and the Antitrust Modernization Commission Report
Keith N. Hylton
William Fairfield Warren Distinguished Professor, Boston University; Professor of Law, Boston University School of Law
June, 23 2008
Antitrust Bulletin, Forthcoming
Boston University School of Law Working Paper No. 08-22
The Antitrust Modernization Commission recommends that refusals to deal with rivals in the same market should rarely, if ever, be unlawful. I will focus on the principles that should determine the legal standard governing unilateral refusals to deal. A legal test that is strongly biased in favor of defendants, as the Commission recommends, is desirable as a default rule and especially in cases in which the essential facility at the core of the refusal to deal dispute is efficiency enhancing. However, there is another set of cases in which the defendant gains control of an essential market portal. In these cases, a legal test that is less biased toward defendants may be preferable to the Commission's suggested approach.
Number of Pages in PDF File: 15
Keywords: The Antitrust Modernization Commission, essential facility, unilateral refusals to deal, monopolizationAccepted Paper Series
Date posted: June 24, 2008
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