Unilateral Refusals to Deal, Vertical Integration, and the Essential Facility Doctrine

45 Pages Posted: 14 Jul 2008

See all articles by Herbert Hovenkamp

Herbert Hovenkamp

University of Pennsylvania Law School; University of Pennsylvania - The Wharton School; University College London

Date Written: July 1, 2008

Abstract

Where it applies, the essential facility doctrine requires a monopolist to share its "essential facility." Since the only qualifying exclusionary practice is the refusal to share the facility itself, the doctrine comes about as close as antitrust ever does to condemning "no fault" monopolization. There is no independent justification for an essential facility doctrine separate and apart from general Section 2 doctrine governing the vertically integrated monopolist's refusal to deal. In its Trinko decision the Supreme Court placed that doctrine about where it should be. The Court did not categorically reject all unilateral refusal to deal claims, but it placed very strict limits on the doctrine's use, which this paper explores.

Keywords: Antitrust, Monopoly, Sherman Act, Essential Facility, Vertical Integration

JEL Classification: K0, K2, K21, L40, L41

Suggested Citation

Hovenkamp, Herbert, Unilateral Refusals to Deal, Vertical Integration, and the Essential Facility Doctrine (July 1, 2008). U Iowa Legal Studies Research Paper No. 08-31. Available at SSRN: https://ssrn.com/abstract=1144675 or http://dx.doi.org/10.2139/ssrn.1144675

Herbert Hovenkamp (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
319-512-9579 (Phone)

University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

University College London ( email )

Gower Street
London, WC1E 6BT
United Kingdom

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