Why Can't a Woman Be More Like a Man? American and Australian Approaches to Exclusionary Conduct

Abstract

Much of antitrust law (in the U.S.) or trade practices law (in Australia) is about "exclusionary conduct," things that large firms do to acquire an even larger share of the market or to preserve their large market share from being eroded by smaller rivals or new entrants. In the U.S., the main vehicle for policing inappropriate exclusionary conduct by large firms against smaller competitors is Section 2 of the Sherman Act, which prohibits monopolization or attempted monopolization. In Australia, the main vehicle is Section 46 which, generally speaking, prohibits the misuse of market power. The main purpose of this paper is to discuss, in broad terms, how Section 2 deals with exclusionary conduct and to compare that with the Section 46 approach. Those who are dissatisfied with the outcome of certain individual cases in Australia, or those interested in reform generally, are occasionally heard to muse about whether Section 46 should be "fixed" in some way, and one possible way that is sometimes discussed is to make it resemble Section 2 more closely. One of the issues that this paper will explore is whether there are deficiencies in the Section 46 approach that can (and should) be "cured" by making it more closely resemble Section 2.