Essential Facilities and the Law of the Hammer

The essential facilities doctrine has received a resurgence of interest recently, especially with regard to platform markets. Many references to the doctrine exaggerate its centrality to antitrust law; it is a “doctrine” in name only. The question is why the essential facilities doctrine has been so popular among recent proponents while it remains unpopular with courts. The answer lies in the doctrine’s ability to simplify inquiries into anticompetitive conduct, which can be complicated in platform markets. The next question, then, is whether that is a good thing. I conclude that it is not. The essential facilities doctrine, appealing as it is for solving a host of competitive problems posed by large Internet platforms, is likely to lead antitrust commentators and courts to ignore more significant – but much harder – questions of what constitutes anticompetitive conduct in the context of those markets. As a theory of liability, the essential facilities doctrine shifts attention away from the question of anticompetitive conduct, which is a question that deserves more attention, not less. Instead, the concept of essential facilities is better thought of as a remedy rather than as a distinct theory of antitrust liability.

By Thomas B. Nachbar^[1]

The essential facilities doctrine has received a resurgence of interest recently. Commentators have been advancing it^[2] for its potential to bring meaningful antitrust regulation to platforms,^[3] and regulators have si