Chapter I. Introduction

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CHAPTER I

INTRODUCTION

The law of competition has three main branches: (1) rules and

principles that govern agreements between business firms, especially

competing firms; (2) rules and principles that govern the legality of

business combinations, such as mergers and acquisitions; and (3) rules

and principles that govern dominant firm conduct, whether unilateral or

concerted, especially strategies and tactics by which firms gain, maintain,

or enhance monopoly power, referred to in the United States as the law

of monopolization.

This work provides an overview of the current state of United States

federal law in respect of the third branch of antitrust law, the law of

monopolization. For purposes of illustration and comparison, it also

provides limited references to legal issues and developments in

jurisdictions outside the United States.

A. Overview: An Area of Continuing Uncertainty

Section 2 of the Sherman Act makes it an offense to “monopolize, or

attempt to monopolize, or combine or conspire with any other person or

persons, to monopolize any part of the trade or commerce among the

severalStates,orwithforeignnations....”

1The case law makes clear

that the offense of monopolization means something more than having a

monopoly and something more than behaving as a monopolist (e.g.,

limiting output and raising price to maximize profits):2it means getting,

keeping, or extending monopoly power in an unlawful way.3The words

of the statute do not, however, define what behavior unlawfully

1. 15 U.S.C. § 2.

2. See, e.g., Verizon Commc’ns v. Law Offices of Curtis V. Trinko, 540

U.S. 398, 407 (2004).

3. See, e.g.,id.; United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir.

2001) (en banc) (per curiam); Pacific Bell Tel. Co. v. linkLine

Commc’ns, 129 S. Ct. 1109, 1118 (2009); Allied Orthopedic Appliances

Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991, 998-1000 (9th Cir.

2010).