Attempts and Monopolization: A Mildly Expansionary Answer to the Prophylactic Riddle of Section Two

The efforts of activist antitrust lawyers to redefine the contours of attempted monopolization under section 2 of the Sherman Act1 have again forced the courts to wrestle with the classic antitrust dilemma: How far must single-firm competitive behavior be restrained to make competition free? The answer given by the majority of current decisions is that, absent some other established offense, single-firm behavior should be prohibited as an attempt to monopolize only when there is a specific intent to monopolize and the firm has come dangerously near to unlawful monopolization. A contemporary challenge to this orthodox answer is rapidly gaining force. The challenge is based on two premises: First, greater regulation of single-firm behavior is necessary even in the absence of high levels of market power or intent to monopolize; second, creative judicial lawmaking is the best available means of achieving this goal. The legal vehicle for creating such judicial regulatory authority is found in the effort to make attempt doctrine into a self-contained principle, divorced from its present marriage to monopolization. Section 2, replete with its criminal and treble damages penalties, would reach any sort of competitive behavior that is, found to be unfair or coercive in its total market setting