Chapter 3 How “Monopolizing Conduct,” “Attempts to Monopolize,” and “Exclusionary or Foreclosing Conduct” Should Be Defined by Economists

Abstract

Both U.S. antitrust law and E.C./E.U. competition law prohibit “monopolizing” or “attempting to monopolize” either explicitly in those terms or by using other words to proscribe such conduct. Thus, Section 2 of the U.S. Sherman Act explicitly prohibits firms from monopolizing or attempting to monopolize; in essence, Section 1 of the Sherman Act prohibits firms from monopolizing by entering into contracts, agreements, or conspiracies in restraint of trade; and Article 102 of the 2009 Lisbon Treaty prohibits firms that are individually dominant or members of a set of rivals that are collectively dominant from committing exclusionary abuses of their dominant position. Unfortunately, none of these statutes or treaties and none of the economic and legal scholars and judges that have analyzed the character of particular business behavior has ever explicitly defined “monopolizing conduct” or “exclusionary abuse,” and the implicit definitions of these concepts that can be derived from the operational decision-rules that scholars recommend be used to decide and that judges have used to decide whether to hold defendants guilty of monopolizing contain both errors of commission and errors of omission. Chapter 3 defines the concepts “monopolizing conduct” and “attempts to monopolize” and comments on what I take to be the coincident concept of an exclusionary abuse (of a dominant position). Inter alia, Chap. 4 explains the errors that relevant judges and antitrust-enforcement agencies have made when operationalizing these concepts.