Hawk, Barry E. --- "The Current Debate About Section 2 of the Sherman Act: Judicial Certainty versus Rule of Reason" [2010] ELECD 363; in Mateus, M. Abel; Moreira, Teresa (eds), "Competition Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Competition Law and Economics

Editor(s): Mateus, M. Abel; Moreira, Teresa

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449992

Section: Chapter 15

Section Title: The Current Debate About Section 2 of the Sherman Act: Judicial Certainty versus Rule of Reason

Author(s): Hawk, Barry E.

Number of pages: 39

Extract:

15. The current debate about section
2 of the Sherman Act: judicial
certainty versus rule of reason
Barry E. Hawk1

Section 2 of the Sherman Act, which is a rough counterpart to Article
82, prohibits monopolization, attempt to monopolize and conspiracy
to monopolize.2 Article 82 prohibits only abuses by existing dominant
firms, and this chapter focuses on actual monopolization (as opposed to
attempted monopolization or conspiracy to monopolize) under section 2.


I. THE LEGAL CERTAINTY PROBLEM

There has been considerable debate in the U.S. about the conduct element
of section 2.3 This debate has included the question whether section 2 has
generated too much legal uncertainty (that is, ex ante unpredictability)
and, if so, how legal certainty can be increased. Two questions should be
distinguished: first, how serious is the certainty problem; and second, what
are the solutions?
The first question is: how serious is the uncertainty? Certainly U.S. com-
mentators and businesses have complained vociferously about the lack
of predictable rules governing unlawful monopolization under section 2.
For example, the Antitrust Modernization Commission in 2007 concluded
that there is a need for greater clarity with respect to bundled discounts
and unilateral refusals to deal.4 Uncertainty is compounded by the use of

1 I would like to thank my colleague Steven Hough for his research assistance,

and Einer Elhauge and Gregory Werden for their comments.
2 Sherman Anti-Trust Act of 1890 § 2, 15 U.S.C. § 2 (2007).
3 Actual monopolization requires both monopoly ...