Section Two of the Sherman Act: The Search for Standards

Over its 114-year history, Section Two of the Sherman Act has been a source of puzzlement to lawyers, judges and scholars, a puzzlement derived in large part from the statute's extraordinary brevity. Beyond the elimination of exploitative actions from the section's coverage, however, a standard based simply on that which is exclusionary provides little if any guidance to judges, juries, and firms with relatively high market shares, and little assurance that it does not restrict more competition than it enhances. Here, Kauper explores whether there have been any progress made toward a new approach while referring to older cases to set the stage, primarily on more recent decisions such as Microsoft, AMR, LePage's, and Trinko. A brief discussion of proposed new standards advanced by others is also presented.