Attempts to Monopolize ---- An American Anomaly

Abstract

The attempt provision is based on the criminalization of Section 2 which is now recognized as no longer appropriate. The attempt provision fills no important gap in antitrust enforcement and generates unnecessary costs and doctrinal complexities that burden litigation. While the attempt to monopolize provision remains, courts should discard specific intent as an element of the claim. Modern criminal law principles fail to support a specific intent requirement which 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. Specific intent aggravates the doctrinal uncertainties under section 2. The standard for attempted monopolization should correlate with the completed offense of actual monopolization: “anticompetitive” conduct plus significant but less than monopoly power market power (“dangerous probability”).Evidence of subjective intention (state of mind) should be admissible and given probative weight only as relevant to a specific material issue such as the legitimacy of asserted business justifications or competitive effects. With elimination of specific intent as an element of the claim, evidence of intent should not be admitted unanchored to a material issue.