EXCLUSIONARY CONDUCT UNDER THE ANTITRUST LAWS: BALANCING, SACRIFICE, AND REFUSALS TO DEAL

摘要

Important recent antitrust cases involving allegations of monopolization and exclusionary conduct, including the Supreme Court's decision in Trinko and lower court decisions in Microsoft, LePage's, and Xerox, have focused attention on the evolving and uncertain standards regarding exclusionary conduct. Because of the Trinko case in particular, refusal to deal issues have been especially controversial. This Article discusses a possible approach to exclusionary conduct, which is sometimes called the "sacrifice test." Part Ⅰ describes the problem of exclusionary conduct in general. Part Ⅱ explains that one's approach to exclusionary conduct depends to a large extent on whether one views antitrust as law enforcement or as regulation. Parts Ⅲ and Ⅳ discuss pros and cons of different approaches to exclusionary conduct. Part Ⅴ discusses refusals to deal in greater detail. It argues that refusals to deal do not warrant special antitrust rules and explains how general principles applicable to exclusionary conduct can be applied to refusals to deal. Part Ⅵ sets forth some concluding comments.