MONOPOLIZATION. III. SECTION 2 OF THE SHERMAN ACT AND OLIGOPOLY SITUATIONS
In Chapter III above the outline of the law under section 1 of the Sherman Act, dealing with restrictive agreements between competitors, was rounded off by a description of various attempts that have been made to bring this part of the law to bear against so-called 'oligopoly' situations -- those in which a few firms are responsible for much the greater part of an industry's output. In the same way this chapter must complete the story of the law of monopolization by showing how it too may be applied to 'oligopoly' situations.
The broad conclusion of Chapter III was that the attempt to extend the legal meaning of 'conspiracy' under section 1 to cover so-called 'conscious parallelism of action' has so far failed. Those who see highly concentrated, 'oligopoly' industries as a reproach to antitrust would like the law to treat as conspiracy any situation in which a few leading firms seem to abridge their internecine competition by mutual reaction or to adopt (with restrictive effect) parallel courses of action in their dealings with others; but the courts have held that a true 'meeting of the minds' is still an essential element in conspiracy and also that 'no parallelism conscious or unconscious can overcome a finding of reasonableness'. So long as this is the law, it is probable that some oligopoly situations in which competition is not notably vigorous will escape antitrust action, even though, as has been seen, the courts have developed acute organs for smelling out a 'meeting of the minds' from circumstantial evidence.
The champions of antitrust action against oligopoly, however, have more than one string to their bow. Section 2 of the Sherman Act, for example, is directed against 'conspiracy to monopolize' as well as monopolizing by a single firm. Might not 'conspiracy' in this context be given a broader scope than under section 1? The leading cases on this topic will be considered later in this chapter. Then again, might not some strands of the legal doctrine on monopolizing be extended so that in an industry dominated by a few large firms each individually