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31 Conn. L. Rev. 1285 (1998-1999)
Designing Antitrust Remedies for Dominant Firm Misconduct

handle is hein.journals/conlr31 and id is 1295 raw text is: Designing Antitrust Remedies for Dominant Firm Misconduct WILLIAM E. KovAcIc INTRODUCTION Antitrust statutes routinely prohibit firms from attaining or sustaining substantial market power through improper means.' Since the late nine- teenth century, when Canada and the United States began the first experi- ments with antitrust law,2 courts, government officials, and commentators have struggled to define when a firm has achieved, or threatened to gain, substantial market power and to specify the difference between legitimate competitive behavior and wrongful methods of exclusion The vast energy applied to address issues of status and conduct often obscures the fundamental question of how to remedy violations. The phe- nomenon is most evident in federal government efforts to enforce restric- * Professor, George Vashington University Law School. The author Is grateful to Terrence Arnold and Leonard Orlandfor many useful comments and suggestions. The author also thanks the University of Connecticut Law School, the staff of the Connecticut Law Review, and Robert Langer and his colleagues at the law irm of Wiggin & Dana for the Invitation to participate In the s nposum at which an earlier version of this Article was presented 1. See ROGER A. BONER & REINALD KRUEGER, THE BASICS OF ANTITRUST POLICY: A REVIEW OF TEN NATIONS AND THE EUROPEAN COMMUNMES 63-66 (World Bank Technical Paper No. 160: 1991) (describing antitrust controls on abuse of dominance). 2. Canada enacted the first national antitrust statute in 1889, though enforcement under the statute was rare and ineffective until passage of a new statute in 1986. See Michael J. Trebilcock, The Evolu- tion of Competition Policy: A Comparative Perspecthe. In THE LAW AND ECONOMICS OF COMP- TITION POLICY 1, 3 (Frank Mathewson et al. eds., 1990); Paul Collins & D. Jeffry Brown, National Antitrust Lmvs in a Continental Economy: A Comparison of Canadian and American Antitrust Lms, 65 ANTTRUST LJ. 495,497-503 (1997). The U.S. Congress passed the Sherman Act in 1890. See 26 Stat. (1890) (codified as amended at 15 U.S.C. §§ 1-7 (1994)); see also James May, Antitrust In the Formative Era: Political and Economic Theory in Constitutional and Antitrust Analysis. 1880-1918, 50 OHIO ST. LJ. 257 (1989) (describing development of U.S. antitrust system). 3. See William E. Kovacic, Failed Expectations: The Troubled Past and Uncertain Future of the ShermanAct as a Tool for Deconcentratlon, 74 IOWA L. REV. 1105 (1989) (describing U.S. experience with abuse of dominance cases that seek structural reliel).

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