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Exclusionary Conduct in Antitrust

Elyse Dorsey and Jonathan Jacobson, St. John’s Law Review, 2014 (forthcoming)

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American society has a long history of encouraging competition, and a long history of abhorring monopoly. Often those two goals are complementary. But not always. What happens if a company competes so aggressively that it wipes out its competitors and gets a monopoly? Is that good or bad? The easy answer is that normal competition is fine, but unfair or predatory competition is not. But that easy answer is not particularly helpful. It is often very hard to distinguish the good from the bad. Low prices are good, right? But what if they are below cost so that rivals can’t compete?

Courts and commentators have struggled hard for many decades to develop rules that separate the lawful conduct of a single firm from the unlawful. And that struggle continues today. We will trace a bit of the history of this struggle, summarize where the courts are today, and then offer a few suggestions for a path going forward."

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