A Unifying Standard for Monopolization: 'Objective Anticompetitive Purpose'
83 Pages Posted: 26 Mar 2017
Date Written: February 2017
Most commentary on the law against monopolization under Section 2 of the Sherman Act highlights the difficulty in distinguishing aggressive competition (which society prizes) from anticompetitive exclusionary conduct (which should be condemned), as well as the controversy created by various tests for monopolization proposed since the turn of the century. This Article seeks to do the opposite. It argues that, despite the apparent differences between the key proposals in this area, a common thread can be identified. In particular, each of the proposed tests for monopolization reveals a central concern, not with the actual effect of the impugned conduct, nor with its profitability for the monopolist or the firm’s subjective intent, but with the objective purpose of the impugned conduct. There is, in fact, a unifying theme, an implicit norm, at work in Section 2 cases and commentary. The implicit norm is that a firm should not engage in conduct which has the purpose, objectively assessed, of creating, protecting, or enhancing monopoly power by suppressing rivalry without creating proportionate benefits for consumers. The relevance of this type of purpose is reinforced by the key themes in the current, highly contentious, debate about the reform of misuse of market power laws in Australia.
Keywords: Antitrust, Monopolization, Abuse of dominance, Misuse of market power, Profit sacrifice tests, Profit-focused test, Effects-based tests, Purpose
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