Stephen M. Maurer & Suzanne Scotchmer

The Essential Facilities Doctrine: The Lost Message of Terminal Railroad

Scholars and judges have long debated whether antitrust law requires dominant firms to share so-called “essential facilities” with rivals. In her final paper, the late Professor Suzanne Scotchmer and coauthor Stephen M. Maurer argue that the doctrine should return to its historic focus on industries where sharing promises important — and otherwise unachievable — synergies. They explain how a reformed doctrine can codify this principle and still be consistent with the existing case law. Their analysis is particularly relevent to the Digital Economy where rivals routinely use the same shared networks, platforms, and interoperability standards.

 

Note: The original PDF of the article was corrected on August 2, 2015. We regret any inconvenience.