Journal Article

Attempts to Monopolize

Hawk, Barry E.

2017

Overview

Laws, like gardens, need occasional pruning to remove doctrinal clutter and costly weeds. The attempt to monopolize provision of Section 2 of the Sherman Act is a prime candidate for pruning and should be repealed. The decriminalization of Section 2 makes the attempt to monopolize provision no longer appropriate. The attempt provision fills no important gap in antitrust enforcement and generates unnecessary and significant costs and doctrinal complexities that burden litigation. So long as the attempt to monopolize provision remains in place, courts should discard specific intent as an element of the claim. “Specific intent” is incoherent, confusing, potentially prejudicial, and an unnecessary legal fiction. It erroneously suggests to the factfinder that an intention to gain monopoly power itself makes the challenged conduct an unlawful attempt to monopolize. Evidence of subjective intention (state of mind) should be admissible only as relevant to a specific material issue such as the legitimacy of asserted business justifications or competitive effects. The probative weight of evidence of intent or state of mind should be limited to the issue for which it was admitted.

• Publisher: SAGE Publications,Sage Publications Ltd
• Subject: Antitrust / Arson / Competition policy / Conspiracy / Costs / Criminal law / Criminalization / Decriminalization / Enforcement / Fines & penalties / Imprisonment / Litigation