Skip to main content Accessibility help
×
Home
Hostname: page-component-99c86f546-45s75 Total loading time: 0.304 Render date: 2021-12-08T04:51:42.845Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

12 - Attempts

Published online by Cambridge University Press:  12 November 2009

Keith N. Hylton
Affiliation:
Boston University
Get access

Summary

Because Socony makes questions of power and success irrelevant under Section 1, given proof of a conspiracy, the concept of attempt comes into play only under Section 2. An attempt to monopolize is a distinct violation of the Sherman Act, and has a distinct set of doctrines.

The key difference between an attempt and a monopolization charge is that in the former, the defendant either did not succeed or the Court does not find significant evidence of success. Consider, for example, the monopolization charge in Griffith. The defendant in Griffith had not achieved monopoly status. However, the government charged the defendant with monopolization because of the evidence of success: the percentage of towns in which the Griffith circuit enjoyed a local monopoly had increased roughly 50 to 60 percent over the period in which the defendants had adopted their practice of block-purchasing films. Had there been no such evidence of success, the appropriate charge would have been attempt to monopolize.

THE SWIFT FORMULA AND MODERN DOCTRINE

The doctrinal formula applied in the area of attempts comes from Justice Holmes's opinion in Swift & Co. v. United States. Justice Holmes described an attempt as conduct that closely approaches but does not quite attain complete monopolization plus a wrongful intent to monopolize. Thus, attempt requires proof of specific intent plus a dangerous probability of success. The cases below put flesh on this skeletal formula.

Type
Chapter
Information
Antitrust Law
Economic Theory and Common Law Evolution
, pp. 244 - 251
Publisher: Cambridge University Press
Print publication year: 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Send book to Kindle

To send this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

  • Attempts
  • Keith N. Hylton, Boston University
  • Book: Antitrust Law
  • Online publication: 12 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511610158.013
Available formats
×

Send book to Dropbox

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox.

  • Attempts
  • Keith N. Hylton, Boston University
  • Book: Antitrust Law
  • Online publication: 12 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511610158.013
Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

  • Attempts
  • Keith N. Hylton, Boston University
  • Book: Antitrust Law
  • Online publication: 12 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511610158.013
Available formats
×