Advisory Board Notes. Jonathan Rubin on The Truth about Trinko

Nov 11 2005


This article argues that there is restraint evident in the opinion in Verizon v. Trinko that goes largely unnoticed. For example, the Court introduced no substantive changes in Section 2 doctrine, overruled no refusal-to-deal case and even reiterated that under certain circumstances Section 2 imposes a duty to deal with rivals. The Trinko Court also left intact the essential facilities doctrine as it existed pre-Trinko, refrained from adopting any behavioral or legal test for anticompetitive conduct, and seemed to employ a case-by-case approach to disputes at the interface of antitrust and regulation. The true impact of the Trinko decision, therefore, may be far less than is often predicted, and certainly does not represent any kind of watershed judicial roll-back of Section 2 monopolization law. The Trinko opinion was largely a restatement of the status quo ante of Section 2 jurisprudence that eventually will prove to be limited in scope to the experimental, pro-competitive Telecommunications Act of 1996 and slight in substantive legal effect.

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