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Twenty-Five Years of Access Denials

Susan A. Creighton and Jonathan M. Jacobson, Antitrust Magazine, Vol. 27, No. 1, Fall 2012, November 28, 2012.

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In 1986, as Antitrust Magazine was being launched, the key precedent governing a monopolist’s denial to rivals of access to its facilities was Aspen Skiing Co. v. Aspen Highlands Skiing Corp., decided just one year earlier by a unanimous Supreme Court. Yet in 2004, in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, a 6–3 majority described Aspen as “at or near the outer boundary of § 2 liability,” and not even the three in the minority offered a word in Aspen’s favor. Trinko was reaffirmed (some would say expanded) five years later in Pacific Bell Telephone Co. v. linkLine Communications. So, at the beginning of ANTITRUST’s history, Aspen was bedrock law. Today, two and a half decades later, it is evidently an outlier. In this article, we describe what happened—how a 9–0 precedent became an unwelcome relicand offer some suggestions for a path going forward. In doing so, we explain why the distinction commonly offered, that the conduct at issue in Aspen involved a break from a prior course of dealing while Trinko did not, is a distinction that is not only inconsistent with other Supreme Court precedent, but that provides a wholly inadequate basis for sound antitrust policy.

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