The Antitrust Laws of the United States of America: A Study of Competition Enforced by Law

By A. D. Neale | Go to book overview

CHAPTER V
MONOPOLIZATION. II. MONOPOLISTIC PRACTICES

1. Definition of monopolistic practices

The previous chapter has dealt with the quite small number of cases in the history of antitrust in which the United States Department of Justice has sought to break the dominant hold obtained by a single firm over a whole industry. Such cases are naturally taken first because they exhibit the law of monopolization comprehensively in all its aspects. Section 2 of the Sherman Act may also be used, however, with more limited objectives.

As has been seen, the element of purposive drive that constitutes monopolization may appear in the way monopoly power is acquired and held or in the way it is used. If unlawful purpose is shown in getting and keeping dominant power, it is immaterial whether the power is actually exerted; and if it is unlawfully exerted -- with the purpose or effect of raising prices or excluding competitors from the market -- it is immaterial that it may have been lawfully acquired or merely 'thrust upon' its possessor. Many cases brought under section 2 deal with particular practices that powerful firms may adopt in building up or maintaining or exerting their power. These may be called monopolistic practices and they broadly correspond to the restrictive practices adopted by agreement between competitors that were considered above (Chapter II).

In this chapter the main lines of cases of this type will be illustrated. In the first part of the chapter the emphasis will be on ways in which a legitimately acquired or 'inescapable' monopoly may run the risk of a charge of monopolizing by the use made of its power. The latter part will consider the law as it relates to various ways in which firms may augment their power in the market -- for example, by acquiring competing businesses (horizontal integration), by acquiring their own sources of supply of materials or their own distributive outlets (vertical integration) or by entering into various types of exclusive contract with suppliers or distributors. It will be seen that the cases on this second topic form a link between the big monopoly cases and the case-law under the Clayton Act relating to restrictive behaviour on the part of individual concerns which have not necessarily achieved monopoly power.

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