The No-Fault Approach to Monopolization: Terrific, Terrible, or Textualism?

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 conduct. This conclusion emerges from the first-ever textualist analysis of the language of Section 2. This article 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. 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 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. The article briefly analyzes the practical legal and economic effects likely to arise if the courts adopt a “no-fault” approach to monopolization law under Section 2 of the Sherman Act and also under Section 5 of the FTC Act. The article demonstrates that the textualist conclusion constitutes a reasonable policy option.