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58 Antitrust L.J. 841 (1989-1990)
Essential Facilities: An Epithet in Need of Limiting Principles

handle is hein.journals/antil58 and id is 919 raw text is: ESSENTIAL FACILITIES: AN EPITHET IN NEED OF LIMITING PRINCIPLES PHILLIP AREEDA* I. INTRODUCTION There is much talk these days, particularly in the context of deregu- lated industries, about the so-called essential facilities doctrine-so- called because most Supreme Court cases invoked in support do not speak of it and can be explained without reference to it. Indeed, the cases support the doctrine only by implication and in highly qualified ways. You will not find any case that provides a consistent rationale for the doctrine or that explores the social costs and benefits or the administrative costs of requiring the creator of an asset to share it with a rival. It is less a doctrine than an epithet, indicating some exception to the right to keep one's creations to oneself, but not telling us what those exceptions are. As with most instances of judging by catch-phrase, the law evolves in three stages: (1) An extreme case arises to which a court responds. (2) The language of that response is then applied-often mechanically, some- times cleverly-to expand the application. With too few judges experi- enced enough with the subject to resist, the doctrine expands to the limits of its language, with little regard to policy. (3) Such expansions ultimately become ridiculous, and the process of cutting back begins. Essential facilities is now in the expansionary second phase, which needs to be brought back to antitrust policy. With that in mind, I will review briefly the cases usually relied upon, beginning with multifirm combinations. * Langdell Professor of Law, Harvard Law School. This article is condensed from a lecture given at the ABA Section of Antitrust Law National Institute, The Cutting Edge of Antitrust: Exclusionary Practices, Oct. 5, 1989. The author thanks Allan Van Fleet and Margaret C. Ling for their editorial assistance. ' See, e.g., The Cutting Edge of Antitrust: Lessons from Deregulation, 57 Arri'Rus-r L.J. 695 (1988).

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