| John B. Kirkwood, Daniel Francis
Monopolies, Competition Policy, Refusal to Deal
In this episode of Ruled by Reason, guest host John B. “Jack” Kirkwood, Professor of Law and the William C. Oltman Professor of Teaching Excellence at Seattle University School of Law, sits down with Daniel Francis, Assistant Professor of Law at NYU Law School. The two discuss Francis’s award-winning article, Monopolizing by Conditioning, 124 Colum. L. Rev. 1917 (2024).
Professor Francis’s article won the 23rd Annual Jerry S. Cohen Memorial Fund Writing Award, presented on May 29 at AAI’s 2025 Annual Policy Conference, The State of the Antitrust Technocracy. The article demonstrates that conditional dealing should be recognized as its own, separate form of monopolistic conduct rather than squeezed into ill-fitting categories in existing monopolization law. It provides a new analytical framework for evaluating conditional dealing, including a definition of conditioning and standards for gauging its exclusionary impact, contribution to power, and procompetitive justifications. It also explains why courts’ current criteria for evaluating claims based on conditional dealing should be jettisoned.
Professor Kirkwood and Professor Francis discuss the basic idea of monopolizing by conditioning and past efforts to squeeze it into “shoe boxes” under existing monopolization law (7:01); horizontal versus vertical conditioning and raising rivals’ costs (12:43); how “conditioning” compares and contrasts with above-cost pricing, volume discounts, market share discounts, requirements contracts, and refusals to deal (15:57); Francis’s proposed legal standard and how it aligns with the goals of antitrust law (29:43); error-cost analysis (37:05); and the prospect of “quick-look” monopolization (40:21).
The Jerry S. Cohen Award recognizes antitrust scholarship that reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations on economic power, or the federal statutes designed to protect society from various forms of anticompetitive activity. Selected scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society—values and concerns Jerry S. Cohen dedicated his life and work to fostering.
GUESTS:
John B. “Jack” Kirkwood, Professor of Law and the William C. Oltman Professor of Teaching Excellence at Seattle University School of Law
Daniel Francis, Assistant Professor of Law at NYU Law School
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