Diana De Leon


A critical safeguard of the competitive process, Section 2 of the Sherman Antitrust Act prohibits unilateral conduct that results in the acquisition or maintenance of monopoly power. The Supreme Court in recent years has seemingly continued to defend monopoly power as “an important element of the free-market system,” but it has failed to provide clear instructions to guide lower courts in their analyses of Section 2 claims. This Article examines the state of Section 2 jurisprudence with an emphasis on lower federal courts, focusing on their interpretations of Supreme Court decisions dealing with unilateral refusals to deal and price squeezes. In 2003, the Court narrowed the scope of Section 2 liability on Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, suggesting that monopolists generally have no duty to continue dealing with rivals. In the years following the decision, lower federal courts have struggled to uniformly interpret and apply Trinko in their determinations of what conduct is unlawfully predatory or exclusionary under Section 2. Additionally, it has become clear that lower federal courts have adopted the Court’s desire to avoid overdeterrence, as their constructions have ultimately made it more difficult for private plaintiffs to win monopolization cases against dominant firms. This Article urges antitrust courts to adapt to a changing global economic climate and, in doing so, proposes four avenues for reform that range from theoretical to practical. In light of shrinking enforcement efforts and the increasing obstacles faced by private plaintiffs in federal courts, fundamental change is necessary to protect competition and consumers.

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