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Vanderbilt Law Review

Joel R. Tew

First Page

309

Abstract

Attempt to monopolize is an elusive concept. The number of divergent views demonstrates the complexity the courts face in re-solving the controversy. The first step toward resolution requires are thinking of antitrust values. The many legal tangents have not produced a satisfactory result primarily because they are formulated on a value base that is incompatible with the functional requirements of the competitive process. While economic efficiency is a relevant goal of antitrust, it should not be and has not been the only goal. The evolving socioeconomic structure requires broadly based antitrust policy that acknowledges economic and noneconomic values and facilitates the transition from competitive individualism to a competitive process characterized by stabilization and cooperation.Within the broader policy framework, both economic and noneconomic grounds exist for establishing attempt to monopolize as an offense independent from the completed offense of monopolization.Expansion of attempted monopoly would enable the courts to repair the presently overworked conspiracy doctrine of section one and to develop a workable tool for controlling oligopoly. Because criminal attempt doctrine plays no meaningful role in antitrust analysis, the courts should discard the traditional formulation of attempted monopoly in favor of a rule of reason analogous to that employed under section one. Under the new standard, single-firm conduct and performance would be subject to control under section two, analogous to the section one prohibition of concerted activity. In keeping with desirable antitrust policy, the rule of reason should incorporate economic analysis, but should not adhere to overly stringent standards in proof of market power and nearness to actual monopoly. On the practical level the courts should strike an appropriate balance be-tween the litigants to encourage hearty litigation of meritorious claims.

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