Wednesday, June 18, 2008
Posted by D. Daniel Sokol
ABSTRACT: In the United States, monopoly enforcement rises and falls with political and ideological trends. The George W. Bush administration believes that the potential for monopoly profits incentivizes firms to innovate, and it avoids aggressive enforcement policies that might chill innovation. While few would argue for blind condemnation of monopoly power, critics argue that current monopoly-enforcement policy ignores exclusionary conduct that harms competition—and ultimately consumers.
This Paper gives a brief overview of section 2 of the Sherman Act, describes recent developments, summarizes the Antitrust Modernization Commission’s (AMC) recent section 2 findings and recommendations, and describes current enforcement policies. It suggests that a more aggressive federal enforcement policy would benefit both consumers and the competitive process and recommends that antitrust enforcers do the following: increase scrutiny of monopolists’ potentially anticompetitive behavior; adopt a more balanced approach in amicus briefs; be more open to the views of foreign antitrust-enforcement agencies; seek opportunities through case law to develop coherent approaches to bundling and refusals to deal; give more serious consideration to structural remedies in appropriate cases; and restore balance between the apparently competing goals of protecting intellectual-property rights and enforcing the antitrust laws.