Should There Be an Essential Facility Doctrine
![handle is hein.journals/davlr21 and id is 339 raw text is: Should There Be an Essential Facility
Doctrine?
James R. Ratner*
The essential facility doctrine' provides an interesting example of
the dilemma posed by modern economically-oriented antitrust policy.
The doctrine, which has taken various forms, applies when a firm or a
group of firms controls access to something essential for competition
in a particular market. If a court finds access to be essential, denial of
access to that essential facility may be illegal. Courts have invoked
the concept in industries ranging from railroads to fruit and vegetable
wholesaling to telecommunications to professional sports.2 It is thought
to have originated in United States v. Terminal Railroad Association,3
in which the Supreme Court required Jay Gould and others who
maintained effective control over railroad bridges that crossed the Mis-
sissippi River to provide access to any competitors who wished to cross.
Recently, essential facility as a theory of antitrust liability has be-
* Associate Professor of Law, University of Arizona College of Law. A.B. 1979,
M.A., Economics, 1980, J.D. 1980, University of California, Berkeley. The author
thanks Professor Kenney Hegland and Professor Theresa Gabaldon for making numer-
ous useful suggestions, and Professor Leonard Ratner for providing his usual sterling
academic and parental advice.
I The essential facility concept has been identified in various circuit and district
court cases. See cases cited infra notes 15-40; see also P. AREEDA & D. TURNER,
ANTITRUST LAW 564-609 (Areeda & Hovenkamp Supp. 1987) [hereafter AREEDA &
HOVENKAMP] (Note that prior to the supplement, the Areeda and Turner treatise did
not specifically discuss the doctrine.); Boudin, Antitrust Doctrine and the Sway of Met-
aphor, 75 GEo. L.J. 395 (1986); Travers, Does a Monopolist Have a Duty to Deal
with Its Rivals? Some Thoughts on the Aspen Skiing Case, 57 U. COLO. L. REv. 727
(1986); Note, Unclogging the Bottleneck: A New Essential Facility Doctrine, 83
COLUM. L. REV. 441 (1983) [hereafter Note, Unclogging the Bottleneck].
2 See, e.g., United States v. Terminal R.R. Ass'n, 224 U.S. 383 (1912); MCI Com-
munications v. American Tel. & Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied, 464
U.S. 897 (1983); Hecht v. Pro-Football, Inc., 570 F.2d 982 (D.C. Cir. 1977), cert.
denied, 436 U.S. 956 (1978); Gamco, Inc. v. Providence Fruit & Produce Bldg., Inc.,
194 F.2d 484 (1st Cir. 1952); see also Boudin, supra note 1, at 398-99.
3 224 U.S. 383 (1912).](ViewImageLocal?handle=hein.journals/davlr21&div=15&collection=&method=preview&ext=.png&size=3)
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Should There Be an Essential Facility Doctrine
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