Vol 7 No 1 - Roger Williams University School of Law

that a monopolist should not seek to grow or maintain183 amonopoly through anti-competitive conduct. Section 46 of theAustralian Trade Practices Act says that someone possessingsubstantial market power should not take advantage of thatpower to lessen competition, while in Europe an entity should notabuse a dominant position in the market.184Understanding the scope and function of these laws dependson understanding their purpose. There are at least two reasonsfor adopting competition laws:185to facilitate diversity of economic actors in the marketplace—suggesting a number of small or medium playersrather than monopolies and;to ensure economic efficiency leading to an optimisationof consumer welfare—suggesting a market place thatprovides the best economic outcomes for consumersThe first rationale promotes diversity while the second promoteseconomic efficiency, in terms of economic welfare.Many subscribe to the view that the Sherman Act was enactedto protect the existence of small or medium size businesses in theface of monopolies.186 However, under the influence of theChicago School of Law and Economics, antitrust law is nowadaysmore frequently conceptualized in terms of the economic efficiencyof market practices with consumer welfare as an economic issueshall be deemed guilty of a felony, and, on conviction thereof, shall bepunished by fine not exceeding $ 10,000,000 if a corporation, or, if any otherperson, $ 350,000, or by imprisonment not exceeding three years, or by bothsaid punishments, in the discretion of the court.Id.183. In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., the Supreme Courtexplained that “[t]he offense of monopoly under §2 of the Sherman Act has twoelements: (1) the possession of monopoly power in the relevant market and (2) thewillful acquisition or maintenance of that power as distinguished from growth ordevelopment as a consequence of a superior product, business acumen, or historicaccident.” 472 U.S. 585, 596 (1985) (quoting United States v. Grinnell Corp., 384 U.S.563, 570-71 (1966)).184. See Trade Practices Act, 1974, § 46 (Austl.).185. See David McGowan, Innovation, Uncertainty and Stability in Antitrust Law,16 Berkeley Tech. L.J. 729, 741-64 (2001) (discussing “some of antitrust’s purposes”).186. Herbert Hovenkamp, Federal Antitrust Policy 47-76 (2d ed. 1999) (arguingthis view is supported by more recent amendments to the Sherman Act and publicchoice theory of the role of interest groups in the legislative process); George J. Stigler,The Origin of the Sherman Act, 14 J. of Legal Stud. 1, 1-8 (1985).