Section 2 of the Sherman Act was designed to impose sanctions on all firms that monopolize or attempt to monopolize regardless whether the firm engaged in anticompetitive conductor, and regardless whether the firm is efficient. This conclusion emerges from a textualist analysis of the language of Section 2. This article briefly analyzes contemporaneous dictionaries, legal treatises, and cases, and demonstrates that when the Sherman Act was passed the word “monopolize” simply meant that someone had acquired a monopoly. The term was not limited to monopolies acquired through anticompetitive conduct or monopolies that were inefficient. An attempt to monopolize also had its current colloquial meaning. A textualist analysis therefore demonstrates that Section 2 was designed to impose sanctions on all monopolies and attempts to monopolize. A textualist approach to statutory construction should not imply or create unstated exceptions. Since Section 2 of the Sherman Act contains no explicit exception for efficient monopolies or for a monopoly acquired without proof of anticompetitive conduct, none should be created by the courts. Current case law requiring plaintiffs to prove that defendant engaged in improper conduct should be overturned.
Robert H. Lande,
Who Cares Whether A Monopoly is Efficient? The Sherman Act Is Supposed to Ban Them All,
Available at: https://scholarworks.law.ubalt.edu/all_fac/1187