When Is It Worthwhile to Use Courts to Search for Exclusionary Conduct?

Wednesday, January 1st, 2003 at 12:00 am by Frank H. Easterbrook
Frank H. Easterbrook, When Is It Worthwhile to Use Courts to Search for Exclusionary Conduct?, 2003 Colum. Bus. L. Rev. 345

I want to talk today about the puzzle of exclusionary conduct. Aggressive, competitive conduct by any firm, even one with market power, is beneficial to consumers. Courts should prize and encourage it. Aggressive, exclusionary conduct is deleterious to consumers, and courts should condemn it. The big problem lies in this: competitive and exclusionary conduct look alike. The dominant firm is an aggressor and expands its market share at the expense of its smaller rival. The rival yelps and sues–or complains to the Antitrust Division and state attorney general and asks them to sue in its stead.

Can litigation separate exclusion from competition? What we would have to know is future market structure and performance. Will aggression today be followed by monopoly tomorrow (bad) or more aggression tomorrow (good)? Few litigants or judges are gifted with prevision, and the Federal Trade Commission recently brought an action against a group of supposed psychics who widely advertised on late night tv. If claims of ability to foresee the future are bunk when made on tv, are they better when made by plaintiffs, prosecutors, and judges?

Author Information

Judge, United States Court of Appeals for the Seventh Circuit; Senior Lecturer, The Law School, The University of Chicago