45 Pages Posted: 14 Jul 2008
Date Written: July 1, 2008
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: Suggested Citation
Hovenkamp, Herbert J., 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
By Mark Lemley