By Daniel Francis (Harvard)
For more than a century, courts and scholars have searched without success for a general definition of monopolization. Some proposals rely on elusive ciphers like “predatory conduct” or “competition on the merits”; others depend on nebulous or impractical balancing tests; others make antitrust liability implausible except in the most extreme cases. Our failure to give a clear and principled explanation of what monopolists may not do has daunted enforcers, confounded courts, encouraged bad behavior by powerful firms, and undermined public faith in our antitrust system. In an age of digital dominance, the mounting costs of confusion have fueled calls to replace, or thoroughly reshape, the Sherman Antitrust Act.
This Article outlines a course correction, drawing on monopolization’s historical, theoretical, and doctrinal foundations to improve both the vigor and rigor of the law. We can make sense of monopolization by understanding it as an effort to do three separate things: guard against contribution to the dangers of monopoly; protect against a wrong called “exclusion”; and respect a sphere of competitive privilege. This view implies a framework for monopolization cases—which I call the “dangerous exclusion” approach—to replace the conclusory labels of existing law; unify its sprawling array of micro-rules; correct widespread misunderstandings (including mistaken claims that a plaintiff must show actual effects on price, output, or other competitive outcomes); and help navigate real problems.
The dangerous-exclusion framework offers a principled and workable middle way between conservative approaches that are unduly preoccupied with the risk of “false positive” interventions and radical proposals that threaten to harm consumers. As a qualitative, court-centric approach, it contrasts sharply with both left-wing calls to entrust the antitrust project to rulemakers and right-wing proposals to delegate it to econometricians. But our imperfect adjudicative tradition is up to the task, in digital markets and beyond. There is plenty of life in the Sherman Act yet.
