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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
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
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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