Notre Dame Law Review, Vol. 61, No. 5 (1986), pp. 1109-1145

Abstract

The wounded condition of several major American industries, including steel and textiles, resulting from foreign ‘predatory’ conduct has generated much commentary. At the same time, private spokesmen for our institutionalized business interests, including the financial community, have bemoaned American balance of trade figures, blaming them on such ‘impediments' to our export trade as foreign trade barriers and domestic antitrust laws. The two trade problems suggest a common theme: foreign governments have been unfairly aiding their business interests by protecting monopolized or cartelized foreign markets from American business penetration while also subsidizing, directly or indirectly, foreign invasion of certain targeted American markets.

While recognizing subsidized imports and the resulting foreign trade imbalances as trade policy problems, scholars, judges, and governmental officials have also expressed interest in resolving a related domestic competition issue which could help to eliminate predatory conduct in international as well as domestic trade. Through a modest judicial or, if necessary, legislative route, these people seek a clarification of the attempt offense in section 2 of the Sherman Act to bring the law defining attempt to monopolize in line with the common law and Model Penal Code definitions of criminal attempt. Many circuit courts currently require a showing that the defendant is dangerously close to monopolization before finding an attempt to monopolize. A clarification of the attempt offense would emphasize that victimized American corporations may bring private attempt to monopolize cases against state controlled or subsidized foreign manufacturers that have penetrated American markets through predatory means while their domestic markets remain monopolized. These suits should be allowed even where, as a practical matter, the foreign competitors are not ‘dangerously close’ to monopolizing American markets.

This article, in Part I, will review the background and existing state of the law of attempt to monopolize in the Supreme Court and lower federal courts, with particular attention given to the prevailing requirement that the plaintiff show that the defendant is dangerously close to successful monopolization. Part II will focus upon the two major attempt to monopolize cases brought in the last decade by the Department of Justice. The practices challenged in those cases constitute domestic counterparts of some of the alleged predatory practices of foreign competitors, and the cases make clear that the Department has, as a matter of domestic antitrust enforcement, been strongly supportive of the clarification of the attempt offense advocated herein. Part III will review the common law of criminal attempt, which the Supreme Court seems to have recognized as applicable to the Sherman Act, and suggest that it is parallel to the proposal contained in the 1979 National Commission Report to the President concerning the attempt to monopolize provision. That proposal does not require independent proof that a defendant is likely to achieve monopoly power.

The article will conclude that a clarification of the attempt to monopolize provision, which would not require independent proof that a defendant is dangerously close to successful monopolization, will resolve an issue of glaring ambiguity in our domestic competition law. The clarification could provide a legitimate weapon for our domestic industries to use against truly predatory foreign competition, while not directly involving United States foreign trade policy and avoiding traditional forms of economic retaliation damaging to world markets.

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