The Sherman Antitrust Act § 2 makes monopolizing or attempting to monopolize a particular trade or aspects of a trade a federal felony. More specifically, Section 2 of the Act addresses a firm's unilateral conduct. Under the administration of former President George W. Bush, a comprehensive guideline titled Competition and Monopoly: Single-Firm Conduct under Section 2 of the Sherman Act ("Bush Guidelines") was adopted in September of 2008 for enforcing Section 2 violations. Under President Barack Obama's administration, however, the enforcement of antitrust laws is expected to undergo a radical transformation. On May 11, 2009, Christine A. Varney, the Assistant Attorney General for the Department of Justice's Antitrust Division, announced that the Department would withdraw the previous administration's guidelines for antitrust enforcement, and take enforcement of antitrust abuses in a new and more aggressive direction.[...] Although Varney criticized the Bush Guidelines for its extremely cautious approach in Section 2 enforcements, the Obama administration has yet to produce clear guidelines as to the scope of its enforcement or for how courts should interpret Section 2 claims. This Comment thus proposes an approach to Section 2 enforcement and interpretation for the Obama Administration through a closer adherence to Supreme Court precedent. This Comment then compares and applies the proposed approach to Intel's particular case to illustrate the shift in antitrust enforcement actions and how courts are likely to proceed. Part I summarizes the Sherman Antitrust Act § 2 and the Bush Guidelines for Section 2 enforcement. Part II discusses the antitrust principles articulated by the Supreme Court in two seminal cases, Lorain Journal v. United States, and Aspen Skiing Co. v. Aspen Highlands Skiing Co., the limitations to Lorain and Aspen, and what these cases mean for formulating new antitrust enforcement guidelines. Part III takes Intel's case in point to analyze how such new guidelines may affect the future of antitrust enforcement under the Obama Administration. Part III compares the European Union's treatment of Intel to illustrate where the United States' antitrust policy may be headed. Part III then applies and compares the approach under the Bush Guidelines and the Obama Administration's likely approach from Part II for a specific case analysis on Intel and the personal computer microprocessor industry.
Xiao J. Liu,
Lorain, Aspen, and the Future of Section 2 Enforcement,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol16/iss2/3