Cotter, Thomas F. --- "The Essential Facilities Doctrine" [2010] ELECD 275; in Hylton, N. Keith (ed), "Antitrust Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Antitrust Law and Economics

Editor(s): Hylton, N. Keith

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847207319

Section: Chapter 7

Section Title: The Essential Facilities Doctrine

Author(s): Cotter, Thomas F.

Number of pages: 26

Extract:

7 The essential facilities doctrine
Thomas F. Cotter1


Introduction
According to some courts and commentators, the essential facilities
doctrine sometimes requires a monopolist to provide access to a `facil-
ity' under the monopolist's control that is deemed necessary for effective
competition. Although sometimes the facility is literally a physical facility,
in principle the doctrine could apply to other types of property or inputs
as well including intangibles such as intellectual property. To describe the
doctrine as controversial is a gross understatement; indeed, commentary
on the nature of the doctrine often bears an uncanny resemblance to
theological debate. Disagreement exists on almost every key issue includ-
ing whether the doctrine exists at all (thus far the US Supreme Court
has professed its agnosticism); what its essential characteristics are (for
example, whether the monopolist must operate in two vertically related
markets and whether the antitrust plaintiff must be a potential competitor
of the monopolist); and whether the doctrine performs any function that
cannot just as easily be performed by other, more conventional antitrust
doctrines. To paraphrase the French mathematician, Laplace, is the essen-
tial facilities doctrine a hypothesis we do not need? Is it merely a relic of a
bygone era of antitrust enforcement, grounded in scholastic scruples over
fair dealing and just pricing, which the enlightened rationality of Hyde
Park, home of the University of Chicago, and Cambridge has since con-
vincingly dismissed as nothing more than fuzzy-headed superstition? Does
the essential facilities doctrine demand too much faith in ...