The Necessary Revival of Sherman Act Section 2

The application of the antitrust laws to single-firm behavior is challenging. On the one hand, neither courts nor government enforcers are well equipped, or even inclined, to micro-manage a single firm’s choice of suppliers, customers, distribution strategies, or product bundling, even if that firm is a monopolist or otherwise dominant. On the other hand, firms with substantial market power can inflict serious economic harm. For many years, the difficulty of controlling exclusionary practices led to the de-emphasis of Sherman Act Section 2 cases. But in recent years, as the harms from single-firm exclusionary behavior have become more apparent, in the big tech world and beyond, there has been a resurgence of interest in Section 2. This essay argues that the antitrust laws are indeed capable of effectively addressing practices that sustain market dominance, and it encourages renewed attention to, and use of, Section 2.

By Diane P. Wood¹

Section 2 of the Sherman Act has been a problem child for a long time. Judge Learned Hand put his finger on its difficulties 75 years ago, when he wrote in his famous Alcoa opinion that “[t]he successful competitor, having been urged to compete, must not be turned upon when he wins.”² Yet only a few pages earlier, in the same opinion, Hand had also written that “[t]hroughout the history of these statutes it has been constantly assumed that one of their purposes was to perpetuate and preserve, for its own sake and in spite