Volume 75, Number 4

October 2000

Identifying Monopolists’ Illegal Conduct Under the Sherman Act

Thomas A. Piraino, Jr.

Upon surveying antitrust enforcement pursuant to Section 2 of the Sherman Act, Thomas Piraino concludes that the standard for determining violations has become muddled and confusing. He proposes a new standard to assist courts in distinguishing beneficial from harmful conduct; one that focuses on the monopolist’s substantive competitive purpose. Under that standard, conduct should be illegal under Section 2 if it makes no economic sense other than as a means of perpetuating or extending monopoly power. Piraino illustrates the benefits of this proposed standard by applying it to the Microsoft litigation.