Exclusionary Conduct in Antitrust

89 St. John's Law Review 101 (2015)

42 Pages Posted: 17 May 2018

See all articles by Elyse Dorsey

Elyse Dorsey

Government of the United States of America - Federal Trade Commission

Jonathan Jacobson

New York State Bar Association (NYSBA)

Date Written: November 30, 2015

Abstract

Courts and commentators have struggled hard for many decades to develop rules that separate the lawful conduct of a single firm from the unlawful. That struggle continues today. We trace a bit of the history of this struggle, summarize where the courts are today, and then offer a few suggestions for a path going forward. Particularly, we explain why examining both defendant's conduct and effects on the plaintiff--as modern antitrust analysis does--is appropriate. Because the issue is exclusion, and because the fundamental concern in the raising rivals' costs paradigm is whether a rival can achieve minimum efficient scale, some inquiry into whether the plaintiff can or cannot compete effectively against the tactics in question is essential. Conduct challenged as exclusionary may in fact prevent rivals from constraining the market power of a dominant firm. But the effects of that conduct, almost invariably, are ambiguous: Does the conduct prevent rivals from competing effectively or should it cause rivals to compete more effectively? Distinguishing between these two effects is essential because the one threatens consumer harm while the other yields consumer benefits. There is no one-size-fits-all test for distinguishing exclusionary conduct from aggressive but legitimate competition. But by placing at least some of the focus on whether an efficient rival could meet or defeat the tactics in question, important light is shed on the ultimate question of consumer harm. The law is moving in that direction, and that trend should continue.

Keywords: antitrust, exclusion, exclusionary conduct, raising rivals costs, equally efficient rival, exclusive dealing, bundling, loyalty discounts, tying, refusals to deal

Suggested Citation

Dorsey, Elyse and Jacobson, Jonathan, Exclusionary Conduct in Antitrust (November 30, 2015). 89 St. John's Law Review 101 (2015). Available at SSRN: https://ssrn.com/abstract=3165261 or http://dx.doi.org/10.2139/ssrn.3165261

Elyse Dorsey (Contact Author)

Government of the United States of America - Federal Trade Commission ( email )

600 Pennsylvania Ave., NW
Washington, DC 20580
United States

Jonathan Jacobson

New York State Bar Association (NYSBA)

One Elk Street
Albany, NY 12207
United States

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